Foreign Affairs CommitteeWritten evidence from Fair Trials

About Fair Trials International

Fair Trials International (FTI) is a UK-based NGO that works for fair trials according to internationally recognised standards of justice and defends the rights of those facing charges in a country other than their own. Our vision is a world where every person’s right to a fair trial is respected, whatever their nationality, wherever they are accused.

FTI pursues its mission by providing individual legal assistance through its expert casework practice. It also addresses the root causes of injustice through broader research and campaigning and builds local legal capacity through targeted training, mentoring and network activities.

Although FTI usually works on behalf of people facing criminal trials outside of their own country, we have a keen interest in criminal justice and fair trial rights issues more generally. We are active in the field of EU Criminal Justice policy and, through our expert casework practice we are uniquely placed to provide evidence on how policy initiatives affect defendants throughout the EU.

Executive Summary

This paper focuses on four areas:

UK policy with regard to European Union justice measures, specifically, the procedural rights “Roadmap” and its importance for ensuring consular protection for British citizens detained in other EU countries;

Action needed at EU level to end the abuse of pre-trial detention;

The need to reform the UK’s extradition arrangements; and

The abuse of Interpol’s systems for issuing “red notices” and the risks this poses to human rights and the rule of law.

EU justice and procedural defence rights: The first two measures of the EU procedural defence rights “Roadmap” have now been adopted, with UK participation: the first guaranteeing the right to interpretation and translation and the second the right to information during criminal proceedings. These will provide valuable protection for the rights of suspects and defendants. It is regrettable that the Government chose not to participate in the third measure, on the right of access to a lawyer in criminal proceedings and on the right to communicate on arrest with consular officials, family members and others. In many parts of Europe, these rights are routinely infringed. Without a strong EU measure to safeguard these rights, the millions of British people who travel to European countries each year may not have adequate protection in the event of their arrest.

Pre-trial detention in the EU: Pre-trial detention provides an important way to ensure defendants attend trial and to protect witnesses and safeguard evidence during investigations. However, the over-use of pre-trial detention and the varying standards in how it is applied and reviewed adversely affect fair trial and other fundamental rights and waste billions of Euros in prison costs each year. FTI has called for action at EU level to address this, including a set of enforceable minimum standards for the use of pre-trial detention and for the effective and regular judicial review of decisions to remand in custody.

Extradition reform: FTI accepts the need for an effective system of extradition both within the European Union and globally. However, to address the widely recognised flaws in the European Arrest Warrant system, the UK needs to work with EU institutions and other Member States to introduce much-needed reforms to the system, including a “proportionality test” and stronger safeguards to prevent human rights infringements. In respect of non-EU countries, a series of simple reforms are required in order to safeguard fundamental rights. The UK also needs to reconsider the designation of certain countries under the provisions of section 84 of the Extradition Act 2003, where those states are recognised by the FCO as “countries of concern”.

Interpol and “red notice” reform: Injustice is being caused by this powerful international police cooperation tool. Stronger safeguards are required against abuse of the system by which “red notices” are issued and circulated. These global “wanted” notices can have immense and lasting human impact, leading to arrest, detention, asylum refusal and other consequences. Yet individuals affected have no independent body to hear complaints or provide redress in cases of injustice: for example, where a notice was issued for politically motivated reasons.

Introduction

1. Fair Trials International (FTI) welcomes this opportunity to present evidence and recommendations to the Foreign Affairs Committee for its inquiry into the Foreign and Commonwealth Office’s human rights work. As a charity focusing on protecting the fair trial rights of those arrested in a country that is not their own, our observations refer to those aspects of our work where we consider that action taken or policy developed by the Foreign and Commonwealth Office (FCO) could help to improve the protection of human rights.

European Union Justice Measures

2. We are delighted that the FCO continues to express its commitment to supporting the work of the EU to promote human rights, both within its 27 member countries and in its external relations. As over half of all the requests for assistance FTI receives each year come from people arrested or charged in other EU countries, EU justice policy has been a central focus for FTI in recent years. Our clients’ cases leave us in no doubt that far more needs to be done to raise standards of defence rights protection within the EU.

3. The last decade has seen the EU place unprecedented emphasis on increasing and improving the cooperation between EU Member States in criminal justice matters. It is a sad truth that, for most of this period, the fundamental rights of suspects and defendants have been largely ignored. Insufficient weight is given to the serious work still needed to raise fair trial standards within the Member States. We hope that in the coming year the FCO will work with other Government departments to ensure that all opportunities to raise fair trial standards are taken, in order to ensure that the rights of UK citizens arrested and detained in other EU countries are protected.

4. The mutual cooperation introduced in an effort to streamline procedure in the fight against cross-border crime and create an “area of justice, freedom and security” within Europe is based on the principle of “mutual recognition”. Mutual recognition means that if one EU country makes a decision (for example that a person must be extradited to face a criminal trial or serve a sentence), that decision will be respected and applied throughout the EU, no questions asked. However, given the unacceptable differences in protections for defence rights across the EU, there is not (yet) a sound basis for such trust.

5. The European Arrest Warrant (EAW), the procedure for fast-track extradition between EU countries, was the flagship mutual recognition measure. We accept the need for effective measures to tackle serious cross-border crime and ensure that those wanted by prosecutors cannot evade justice by exploiting open borders. This means an effective, simple extradition system and a speedy and safe system of cross-border investigations. Equally important, but until recently neglected by legislators, are laws needed to ensure fair trials and investigation procedures throughout the EU, including in cross-border cases.

The Procedural Rights “Roadmap” and its Importance for Ensuring Consular Protection for British Citizens Detained in other EU Countries

6. The “Roadmap” for strengthening the procedural rights of suspected or accused persons in criminal proceedings (the Roadmap)1 is a set of procedural safeguards for accused persons intended to ensure that fair trial rights are protected across the EU. FTI sees numerous cases of people who are arrested in a foreign country, unable to speak the language, with inadequate access to a lawyer and limited knowledge of the charges being brought against them. Once implemented, the Roadmap will represent an important step towards ensuring that the rights enshrined in the ECHR are respected in practice and in a consistent way across all Member States.

7. Due to its right to “opt in” to new EU laws on police and judicial cooperation since the Lisbon Treaty entered into force, the UK is only bound by these laws if it first agrees to take part in them. The Government approaches forthcoming EU legislation in the area of criminal justice on a case-by-case basis with a view to: maximising our country’s security; protecting Britain’s civil liberties; and preserving the integrity of our criminal justice system.2 For the reasons explained below, we believe that the Government should opt in to EU measures necessary to protect fair trial rights, and that a failure to do so will adversely affect UK nationals involved in criminal proceedings in other Member States.

8. Despite recent progress under the Roadmap, we are still a long way from an EU where every Member State offers sufficient fundamental rights protections for suspects and defendants. For example, the right to legal advice at the early investigative stage of a case is still not respected in many countries. In several EU states there is also no adequate legal aid provision for accused persons unable to afford a lawyer.

9. FTI’s view is that the Government should opt in to the Roadmap measures and use its influence as a participating state to negotiate for strong and enforceable minimum defence standards. These laws will help avoid the potential injustice that will otherwise result from continued participation in mutual recognition instruments such as the EAW. A failure to opt in and give backing to strong measures could have a detrimental effect on the rights and protections afforded to British nationals who are arrested abroad.

Directive on the Right to Interpretation and Translation in Criminal Proceedings and Directive on the Right to Information in Criminal Proceedings

10. FTI welcomed the Government’s decision to opt in to these Directives which, when transposed into the domestic systems of all EU countries, will help ensure that nobody is denied a fair trial due to a lack of understanding of the language in the country in which they are arrested3 or through a lack of timely information about the charges against them, enabling them to prepare effectively for trial.4

Draft Directive on the Right of Access to a Lawyer in Criminal Proceedings and on the Right to Communicate upon Arrest5

11. Standards of access to early and confidential legal advice and consular access vary across the EU. Even when the right to legal assistance exists in theory in a country’s legal system, it is sometimes not provided in practice. FTI sees cases on a regular basis that demonstrate the detrimental impact that failure to provide legal advice or early communication with consular or diplomatic authorities can have on fair trial rights. The Government has decided not to opt in to the draft directive but has stated that it is participating in the negotiations on the text in the hope that a draft directive will emerge that the Government finds acceptable, enabling it to opt in later.

12. The directive has the potential to address the serious inequality of arms that characterises so many criminal cases across the EU, often to the detriment of British nationals. The directive would enshrine the right to contact consular officials on arrest. This would provide a lifeline to Britons arrested in other EU countries as well as to their loved ones at home. It will also enable ministries of foreign affairs across Europe to comply with their obligation to safeguard the basic rights of their own nationals and to challenge grave violations of those rights as soon as they occur.

Special Safeguards for Vulnerable Suspects or Accused Persons

13. The Roadmap also envisages a measure introducing special safeguards for suspected or accused persons who are vulnerable, such as juveniles or the mentally ill. While this directive is at an early stage of consultation and no draft text has yet been published, FTI hopes that the UK will opt in to this measure and take the lead in the negotiations on its content, in order to ensure that adequate safeguards are implemented for vulnerable suspects. FTI’s casework in various European jurisdictions shows that vulnerable suspects are not sufficiently protected in some EU countries.

Pre-trial Detention and the need for EU Action

14. Pre-trial detention offers important safeguards in tackling and punishing serious crime, but depriving people of their liberty in the period before trial should be an exceptional measure, only to be used where absolutely necessary. Pre-trial detention in many parts of Europe is often excessive in length and imposed without proper justification. FTI is concerned about overuse of pre-trial detention in the EU and the insufficient use of more humane and cost-efficient alternatives. Under the Roadmap, the European Commission published a Green Paper on detention in June 2011.6 The consultation closed in November 2011 but the Commission has yet to announce its next steps. Our report “Detained without trial: Fair Trials International’s response to the European Commission’s Green Paper on detention” contained case studies of 11 FTI clients, a comparative analysis of the use of pre-trial detention in 15 Member States and recommended legislation at EU level to reduce the use of excessive pre-trial detention.7

15. Key findings in FTI’s report were that:

approximately 21% of the total EU prison population is in pre-trial detention and over a quarter of those detainees are foreign nationals;

across the EU, people who have not been convicted of any crime are being detained without good reason for months or even years, often in appalling conditions that make trial preparation impossible;

some countries’ laws allow people to be detained for years before trial, others have no maximum period at all;

few countries have an adequate review system;

non-nationals are far more likely than nationals to suffer the injustice of arbitrary and/or excessive pre-trial detention and be deprived of key fair trial protections;

growing numbers are being extradited under the EAW, only to be held for months in prison, hundreds of miles from home, waiting for trial; and

Europe’s over-use of pre-trial detention costs EU countries approximately €5 billion every year (not including wider costs to society when jobs are lost and children are taken into care).

16. The FCO’s important work in supporting British nationals following arrest and detention at the early stage of criminal proceedings represents a crucial safeguard for these individuals and will leave consular officials in little doubt of the scale of misuse of detention before trial or the excessive periods for which many are held. In FTI’s view, EU legislation is needed to end the abuse of pre-trial detention, which has harsh effects on the lives of many British nationals and their families.

The need to Reform the UK’s Extradition Arrangements

17. The Government has rightly stated that our extradition laws need to be both fair and effective. After debates in Parliament, in-depth inquiries8 and many high-profile cases, it is clear that there are a number of flaws in the UK’s current extradition arrangements. On 5 December 2011, MPs from across the political spectrum voted for reform of the UK’s extradition laws. The Government has yet to clarify how it will respond to these calls for reform, or to the recommendations made by the various review bodies.

18. FTI has identified six simple reforms capable of being achieved by UK legislation, without treaty renegotiation, which would significantly improve the fairness of the current system, as well as reducing costs and increasing efficiency. These six key reforms are:

No extradition until a case is trial ready, to prevent the many cases of premature extradition currently blighting the system;

Allow courts to seek further information from the requesting state before extradition (for example, when it needs to satisfy itself on identity or fundamental rights questions);

Give courts a back-stop power to refuse extradition where it would not be in the interests of justice because the requesting state is clearly not the appropriate forum;

Abolish means-testing for legal aid in all extradition cases, to prevent the delays, wasted costs and injustices caused by the current system;

Extend the fixed one-week deadline to appeal against extradition under a European Arrest Warrant, so that injustices caused by inflexibility in the current system are avoided; and

Allow British nationals or residents who are wanted under “conviction EAWs” to serve their sentence in the UK, to avoid the pointless expense of extradition followed by transfer back to a UK prison.

19. These relatively simple and uncontroversial changes could have a major impact. Alongside these, we have argued that the Government should: i) call for amendment of the EU Framework Decision on the EAW to ensure that proportionality and respect for fundamental rights are adequately and consistently protected;9 ii) continue to work with the EU to raise standards of justice across Europe and to address the excessive use of pre-trial detention; and iii) engage with its US counterparts to address the perceived imbalance in the US-UK Extradition Treaty, something that is achievable through a simple letter of understanding between the two countries.

Should FCO “Countries of Concern” be Designated Territories for Simpler Extradition Procedures?

20. FTI welcomes the work the FCO has done to highlight its serious concerns over human rights abuses in the countries discussed in Section IX of its Report. We would question the appropriateness of countries on this list also being designated as states that no longer need to produce prima facie evidence in support of an extradition request, according to section 84 of the Extradition Act 2003.

21. Russia and Israel are two such countries and have been criticised in the FCO’s 2011 Human Rights report and in several previous annual reports. In Russia, the FCO has found government support of human rights to be “ambivalent” and respect for the rule of law weak. Death in pre-trial detention has been described as a “systemic issue” with 50–60 deaths per year. Concern has been raised over the Russian government’s handling of the Magnitsky and Khodorkovsky cases. In Israel, the widespread use of administrative detention and the routine use of secret evidence and military courts have been identified by the FCO as matters of concern. The mistreatment of Palestinian pre-trial detainees and the lack of access to lawyers have similarly been highlighted.

22. In FTI’s view it is not appropriate as a matter of principle that extradition requests from these states or others where the FCO has highlighted systemic human rights abuses in the context of criminal justice, should be subject to weaker evidential tests than requests from other countries listed in part 2 of the Extradition Act. We recommend that the system by which countries are designated under section 84 of the Act be reviewed.

Interpol and “Red Notices”

23. FTI applauds the FCO report’s emphasis on the clear links between human rights, the rule of law and proper systems of accountability in the context of criminal justice. We agree that these elements of democratic government are crucial to the safeguarding of human rights, ensuring that individuals are treated equally before the law, and preventing those in power from acting in an unfettered or arbitrary way. In this context, we wish to bring to the Committee’s attention our concerns with regard to Interpol and the use of “red notices”.

24. In late 2011, FTI highlighted the case of Benny Wenda, who was given asylum in the UK after he fled Indonesia, where he had suffered persecution and death threats as a result of his peaceful activism for West Papuan independence. In 2011 Benny discovered that Interpol had published a “red notice” against him, seeking his arrest and extradition. Requested by Indonesia, the red notice relates to the same politically motivated charges from which Benny fled 10 years ago. The notice means he is no longer safe to travel to attend campaign meetings and meet other West Papuan refugees overseas. Since highlighting Benny’s case, FTI has become aware of other cases involving apparent abuses of red notices. FTI is in discussion with Interpol about ways to insulate this important crime-fighting organisation against abuse of its systems.

25. Interpol is the second largest international organisation after the United Nations, with 190 member countries and an annual budget of nearly 60 million Euros. It issues thousands of “red notices” each year, each carrying the potential to deprive people of their liberty and reputation. In 2010, over 6,000 of these global “wanted” posters were disseminated. Many of Interpol’s member countries are known human rights abusers and notoriously corrupt. Indeed all but two10 of “countries of concern” listed in Section IX of the FCO’s Report are members of Interpol, some of them states requesting high numbers of public red notices each year (ie notices published on Interpol’s public website, as distinct from those simply circulated among national police bodies via Interpol’s secure communications system).

26. Interpol has insufficiently robust mechanisms to prevent countries, or individual prosecutors, from abusing the red notice system. As a result, even though most red notices may be perfectly valid, abuses of Interpol are taking place, affecting human rights campaigners, journalists, refugees and businessmen, in countries all over the world. Those affected have no independent court they can turn to for redress. They can only request a review by a Commission for the Control of Interpol’s Files, which is effectively part of the Interpol organisation. There is no right to a hearing before the Commission and no reasons given for the decision reached. Even if the Commission concludes that a red notice is inaccurate or abusive, it cannot require its removal or amendment in Interpol’s databases. It can only make non-binding recommendations to Interpol.

27. Interpol itself recognises that, if it is to remain credible, it must respect human rights and maintain its neutrality. It is prohibited by its constitution from undertaking any activities of a political, military, religious or racial character, and it is required to act within the spirit of the Universal Declaration of Human Rights. At present, however, there are no effective mechanisms to enforce and uphold these rules.

28. FTI believes that it is possible to protect against abuse and allow redress without undermining Interpol’s effectiveness:

First, changes can be made to how Interpol operates so that it can identify red notices requested by countries that would be abusive, incomplete or inaccurate. In recent years Interpol has, sadly, made it easier for countries to avoid its limited internal controls; and

Secondly, an effective and independent body must be created to give people a fair chance to challenge red notices against them. This body must follow basic rules of due process, be transparent and give reasons for its decisions. These decisions must also be binding on Interpol.

Conclusion

29. The FCO’s own figures on the numbers of Britons travelling to other countries (both in the EU and beyond) speak for themselves. Many of these people will come into contact with police and prosecutors when they are overseas. For their future protection, the Government should opt into and otherwise support any and all legal measures necessary to raise basic standards to an acceptable level and ensure the rule of law is followed in all criminal justice systems in which the UK participates.

30. The EU’s Roadmap for strengthening procedural rights envisages vital safeguards which, once fully implemented and transposed into the domestic law of Member States, will help ensure fundamental rights do not continue to be sidelined in the push for ever-increasing cooperation among law enforcement authorities. The Government should re-visit its decision not to opt in to the legal advice and consular access directive. It should also take a leading role in relation to protecting defence rights for vulnerable suspects or accused persons.

31. EU legislation is needed on the use of pre-trial detention. This will help ensure that people are not held in unnecessary pre-trial detention for excessive periods of time. We hope the Government will press for action at EU level to end the misuse and overuse of pre-trial detention in the EU, which has harsh effects on the lives of many British nationals and their families.

32. The introduction of the European Arrest Warrant for all EU countries, founded on the principle of mutual recognition, was the start of an EU-wide criminal justice system. Reform of the EAW is essential to ensure that mutual recognition is based on mutual trust rather than “blind faith” that other EU countries will respect fair trial and other human rights. Beyond the EU, our extradition arrangements require simple reforms in a few key areas, to ensure the rule of law is protected and fundamental rights are upheld. The way in which states are designated as not requiring to provide prima facie evidence when making extradition requests should be reviewed.

33. Abuses of Interpol’s “red notice” system are taking place, affecting human rights campaigners, journalists, refugees and businessmen, in countries all over the world. Those affected have no independent court they can turn to for redress. Reform of this system is required to ensure that Interpol’s crucial role in tackling serious cross-border crime is not undermined.

7 June 2012