Select Committee on European Union Sixteenth Report

Article 16:[Criminal procedure]

In order to strengthen mutual trust between the competent authorities of Member States and to guarantee the effectiveness of common tools for police and judicial cooperation, the European Parliament and the Council, in accordance with the legislative procedure, may adopt laws and framework laws containing minimum rules concerning:

-  the admissibility of evidence throughout the Union;

-  the definition of the rights of individuals in criminal procedure in compliance with fundamental rights;

-  the rights of victims of crime;

-  other specific aspects of criminal procedure, which shall be identified in advance by the Council, acting unanimously after receiving the assent of the European Parliament.

Explanatory note

"As the Working Group's final report acknowledges (see page 11), the need for approximation of certain elements of criminal procedure is widely recognised by practitioners and is perhaps more urgent than approximation of substantive criminal law.

Such procedural approximation both facilitates collaboration between law-enforcement agencies of the Member States (and the Union bodies acting in the field), and the application of the principle of mutual recognition, as it strengthens mutual confidence. At present, Article 31 TEU does not reflect this point sufficiently and is too vague on concrete possibilities for such approximation.

This Article is based on the following recommendation by the Working Group:

"The Group recommends the creation of a legal basis permitting the adoption of common rules on specific elements of criminal procedure to the extent that such rules relate to procedures with transnational implications and are needed to ensure the full application of mutual recognition of judicial decisions or to guarantee the effectiveness of common tools for police and judicial cooperation created by the Union. The Treaty legal basis could specify as one domain of action common minimum rules on the admissibility of evidence throughout the Union. The Council could subsequently by unanimity identify all elements of procedure on which minimum rules are required to facilitate mutual recognition.

This legal base could also provide for the setting of common minimum standards for the protection of the rights of individuals in criminal procedure, building on the standards enshrined in the European Convention of Human Rights as reflected in the Charter of Fundamental Rights and respecting different European legal traditions."

Reference is also made in this Article to victims' rights. Indeed, the European Council had already stressed, in the Tampere conclusions, that "minimum standards should be drawn up on the protection of the victims of crime, in particular on crime victims' access to justice and on their rights to compensation for damages, including legal costs" (see paragraph 32)."


51.  As the Praesidium's Explanatory note indicates, Article 16 reflects Working Group X's Conclusions with the addition of a provision on victims' rights. It is a new and potentially controversial provision. Article 16 gives the EU a new competence to adopt measures in the field of criminal procedure, including the admissibility of evidence and procedural rights. It is noteworthy that unlike Article 14 (dealing with approximation of civil laws and procedures) this power is not limited to cases where there are cross-border implications.

52.  Criminal laws and procedures lie at the heart of "legal traditions" (to which Article 1 refers) and divergences in Member States' laws (and even between different jurisdictions within a Member State) reflect fundamental historical, political and constitutional differences. Rules on the admissibility of evidence in criminal proceedings may be closely related to the mode of trial (for example, in England and Wales, to trial by jury). That such rules could be changed without the consent of a Member State is, we believe, unacceptable.

53.  On the other hand the reference to "the definition of rights of individuals in criminal procedure" is unexceptionable. However, in recent inquiries we have received a substantial body of evidence drawing attention to the weight being placed on maintaining "security" to the perceived exclusion or neglect of "freedom". And it is only very recently that the Commission has produced its Green Paper, Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union,[45] which might eventually lead to some form of specific European counterweight to such measures as the European Arrest Warrant. Whether new Article 16 is necessary to achieve that result is debatable and the improvement of such procedural safeguards should not have to await Treaty amendment.

54.  Accordingly we recommend that if Article 16 is to remain in the Treaty, it should be amended so as

(i) to be limited to the adoption of minimum rules under the "legislative procedure" (ie co-decision and QMV) concerning

  (a) the definition of the rights of individuals in criminal procedure so as to ensure compliance with fundamental rights;

  (b) the rights of victims of crime.

(ii) to enable the Council, acting unanimously, to adopt minimum rules relating to other specific aspects of criminal procedure, which shall have been identified in advance by the Council acting unanimously and with the assent of the European Parliament.

Further, the power to make any European laws or framework laws under this Article should, as a matter of the division of competence between the Union and the Member States, be restricted to cases having cross-border implications, as would be the case under Article 14 (Judicial cooperation in civil matters). We recognise, however, that even with such restriction any EU legislation under Article 16 would most likely have substantial effects on procedure in purely domestic criminal cases. The stricter requirement of (ii) would not apply to a proposal on the admissibility of evidence but would ensure that any proposal was firmly based on a clearly demonstrated need to act and that it respected national legal traditions.

45   COM (2003) 75 final. Brussels, 19.2.2003. Back

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