Select Committee on European Union Tenth Report

CHAPTER 8: Criminal Law

Approximation or mutual recognition?

38.  In line with the Tampere conclusions, the Hague Programme continues to place particular emphasis on mutual recognition as the cornerstone of judicial co-operation in criminal matters in the EU. This has been welcomed by the Government.[74] The European Council called for the 2001 EU mutual recognition programme to be completed and stated that further attention might be placed on "additional" areas, without specifying what they were. A central question in developing further the mutual recognition programme is to what extent it should be accompanied by some approximation of the criminal laws of Member States. In the Hague Programme approximation of criminal laws is envisaged in order to facilitate mutual recognition. This wording seems narrower than the approach in the Constitutional Treaty, according to which approximation can take place also in areas where it is necessary to ensure implementation of a Union policy.[75]

39.  The Law Society expressed concern about the development of EU action on criminal law, stating that "mutual recognition must not be used as a means by which to introduce harmonisation of substantive law and procedure 'through the back door'''.[76] JUSTICE, on the other hand, supported some approximation—it believed that "the approximation of certain aspects of criminal procedural law is necessary both to legitimise and facilitate the EU's mutual recognition programme".[77] Ms Flint told us that "there may be some specific areas such as self-incrimination or burden of proof where agreed minimum standards could be possible, and which might be beneficial", but she was more sceptical about further EU work on the admissibility of evidence.[78]

40.  Approximation of the criminal laws of Member States is likely to have a significant impact on Member States' legal cultures and traditions and on national sovereignty. We are pleased to see that the Hague Programme views such approximation as being necessary only if it facilitates mutual recognition. However, the more progress that is made on developing the mutual recognition programme, the greater the need will be for some sort of minimum standard across the EU of procedures in the legal processes for which mutual recognition will be claimed. Such approximation is necessary not only to facilitate mutual trust and justify mutual recognition, but, more importantly, to protect the rights of the individuals affected. However, we would urge caution in the further development of harmonisation in sensitive areas such as the admissibility of evidence. Before any further expansion of harmonisation there needs to be a full examination of the implications of such a development for Member States. This is an area where the principle of subsidiarity will come prominently into play and due observance of it will be necessary.

The protection of the rights of the defendant

41.  One of the main criticisms of EU action in criminal law, and of the development of the mutual recognition programme, has been that it has focused primarily on enforcement measures at the expense of human rights and civil liberties. A prime example of this imbalance was the adoption in 2002 of the European Arrest Warrant, which may have a significant impact on the rights of the individual but has not been accompanied by an EU measure aiming at protecting these rights. A recent attempt to address this gap is a draft Framework Decision on procedural rights in criminal proceedings, currently being negotiated in Brussels, which our Committee has examined in detail.[79] We concluded that setting clear standards at the right level was needed to improve public perception of criminal procedures in other Member States and to enhance mutual trust between the authorities in Member States executing mutual recognition requests.

42.  The Committee remains concerned that the outcome of the negotiations may not ensure a sufficiently high level of protection for suspects and defendants. This concern was echoed by some of the witnesses to this inquiry, who noted that Member States' commitments to protect the rights of the individual were vague and subordinate to the drive to intensify judicial co-operation.[80] We note that unlike earlier drafts, the final version of the Hague Programme contains a deadline—the end of 2005—for the adoption of the proposal on defence rights. We welcome the commitment towards the swift adoption of this important measure, but, as we said in our earlier Report, it should not jeopardise the adoption of adequate standards of protection for suspects and defendants. Standards must not be lowered in order to obtain agreement.

43.  With the exception of defence rights, the Hague Programme does not contain any specific proposals or deadlines for "protective" measures for the individual in criminal proceedings. This is particularly regrettable as regards measures related to bail. The Commission has recently published a Green Paper on bail, but it appears that developing legislative measures in this area is not a current priority for the United Kingdom Government. The Commission will be proposing a legislative initiative later this year, but Ms  Flint was non-committal as to whether the United Kingdom would promote this proposal during its Presidency of the EU.[81] We regret this. Any legislative proposals on bail should in our opinion be treated as a matter of priority during the UNITED KINGDOM Presidency.

Judicial co-operation in criminal matters and the role of Eurojust (and the European Public Prosecutor)

44.  The Hague Programme emphasises the need to reduce legal obstacles and strengthen the co-ordination of investigations "with a view to increasing the efficiency of prosecutions". This, along with the absence of any reference to individual rights in this context, seems to bear out concerns that the main objective of EU criminal policy is prosecutorial efficiency. The development of Eurojust is crucial here. The Hague Programme gives a good deal of attention to Eurojust, largely emphasising the issues that we highlighted in our Report on Eurojust[82]—the need for proper implementation of the Eurojust Decision, and the need for Eurojust to focus on complex, multilateral cases. The Programme calls for new legislation further defining the tasks of Eurojust, but, unlike in earlier drafts, there is no reference to studying the possible creation of a European Public Prosecutor.

45.  We welcome the deletion from the final version of the Hague Programme of the reference to the potential establishment of a European Public Prosecutor. We believe that Eurojust has a pivotal role to play in enhancing judicial co-operation in criminal matters in the EU, and welcome the commitment of Member States to revisit its role in order to achieve greater efficiency. In developing Eurojust's role in dealing with multilateral cases, care must be taken that the rights of the individual are not jeopardised for the sake of "prosecutorial efficiency".

Mutual trust and the judiciary

46.  One of the goals identified in the Hague Programme is the "progressive development of a European judicial culture based on diversity of the legal systems of the Member States and unity through European law". We asked both Ms Flint and Baroness Ashton to explain what was meant by this phrase. Ms Flint linked it with the importance of mutual recognition and proper implementation of EU measures and explained that the Government were aiming during the UNITED KINGDOM Presidency to promote networking and the exchange of best practice by bringing together prosecutors and people from other parts of the judiciary from EU Member States.[83] Baroness Ashton echoed these comments, stressing the central role of mutual recognition and saying that "what we are looking for is an understanding of individual states' legal systems, a respect for those, trust and recognition of the kind of culture that goes alongside that".[84] Baroness Ashton also referred to the role of the European Judicial Training Network.[85]

47.  The emphasis on building trust among the judiciary was welcomed by JUSTICE. It noted that "if insufficient efforts are made to build genuine trust between Member States' judiciaries, not only are attempts to expedite co-operation likely to fail, but there will be increasing tension between the executive and the legislature on one hand and the judges who are at the sharp end of enforcing foreign judgments on the other".[86] We too welcome the emphasis on bringing together prosecutors and judges from Member States in order to promote understanding of the different legal systems in the EU. Better understanding should lead to enhanced trust and consequently better implementation of mutual recognition measures.


48.  The Hague Programme states that, in an enlarged EU, mutual confidence will be based on the certainty that all European citizens have access to judicial systems meeting high standards of quality. The Programme therefore emphasises the need for objective and impartial evaluation of the implementation of EU policies, "while fully respecting the independence of the judiciary". The emphasis on evaluation and implementation was welcomed in principle by the Government[87] and most of our other witnesses.[88] But as we discovered during our inquiry into the Commission proposals on defence rights,[89] the issue of how exactly such evaluation will take place, what will be evaluated, by whom and to what effect is controversial.

49.  We received a range of views on the details of the evaluation process. The Law Society was "keen to see effective monitoring and reporting practices in place to ensure mutual trust between national judicial authorities principally covering the definition of fundamental guarantees and the adherence to high standards in the administration of justice" and believed that this could be done without compromising the independence of the judiciary.[90] According to JUSTICE, independent monitoring and evaluation must specifically assess compliance with the EU Charter and other international human rights instruments and must not focus exclusively on improvements in efficiency.[91] Amnesty expressed concern about the effectiveness of such an evaluation without a mechanism to address any shortcomings that might be found.[92]

50.  The Government supported the emphasis placed on evaluation, but did not appear to have a final view on what this should entail. Ms Flint told us that there was no single way to carry out an evaluation and the issue needed to be looked at on a case-by-case basis. In some cases evaluations by independent bodies might be appropriate, in other cases peer reviews (like the Schengen evaluation mechanism) would do.[93] Baroness Ashton told us that she had not seen any firm proposals on precisely how evaluations would be done, but believed that evaluation must be impartial in order to generate confidence in Member States.[94] According to Ms Flint, the Government would not accept an evaluation of the UNITED KINGDOM legal system as a whole, but there would not be the same objection to an evaluation of the implementation of a specific EU instrument such as the European Arrest Warrant.[95]

51.  As we noted in our Report on procedural rights in criminal proceedings, it is very important that proper monitoring and evaluation procedures should be put in place. Evaluation must not be limited to the collection of statistical data, but must also be based on information coming from the practical experience of the individuals involved (such as suspects and defendants) and the legal profession. Assessment must be made by an independent body, reporting publicly.

52.  We recognise that there are a number of issues that remain unresolved and require careful examination. These include the scope of evaluation in practice: will it focus only on the implementation of a specific measure, or will it extend to the legal/criminal justice systems of Member States? In cases such as the European Arrest Warrant evaluation of the former may inevitably lead to evaluation of the latter. If this happens, what will the impact be on the independence of the judiciary? As to the independent monitoring body, will it be the Fundamental Rights Agency, the Network of Independent Experts on Human Rights or some other body led by the Commission? And as regards the effect of evaluation what, if any, sanctions will be available in cases of non-compliance? These are issues requiring careful, but urgent, examination by Member States in order to establish an effective evaluation system.

Judicial protection in the ECJ

53.  The Hague Programme stresses the need for the Court of Justice to respond quickly to questions related to the interpretation of EU law in the area of Justice and Home Affairs. It refers to Article III-369 of the Constitutional Treaty, which provides that "if such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court shall act with the minimum of delay". The Hague Programme states that, in view of this provision, thought must be given to creating a solution for the speedy handling of requests for preliminary rulings concerning JHA, where appropriate by amending the Statutes of the Court. The European Council invited the Commission to bring forward, after consulting the Court, a proposal to that effect.

54.  We asked for the Government's comments on this matter and were told that, in their view, there were already mechanisms enabling the ECJ to expedite particular cases, so it was not clear that such a move was absolutely necessary at this stage.[96] The Government's response is very disappointing. In view of the far-reaching effects that measures such as the European Arrest Warrant will in many cases have on the rights of individuals, it is essential that any disputes arising from the interpretation of these instruments are resolved as soon as possible. We welcome the commitment by the European Council to establish a mechanism to expedite proceedings in the Court of Justice in JHA cases, and urge that priority be given to any relevant proposals tabled during the United Kingdom Presidency of the EU.

74   Q 32. See also Caroline Flint's letter of 21 December 2004 to Lord Grenfell (Appendix 5). Back

75   Article III-271 (2). Back

76   p 47. Back

77   p 42. Back

78   Q 34. Back

79   1st Report, Session 2004-05, HL Paper 28. Back

80   Amnesty p 23; JUSTICE p 43. Back

81   QQ 40-42. Back

82   Judicial co-operation in the EU: the role of Eurojust, 23rd Report, Session 2003-04, HL Paper 138. Back

83   QQ 31-33. Back

84   Q 60. Back

85   QQ 66-67. Back

86   p 43. Back

87   See oral evidence cited in paragraph 50 below and correspondence in Appendix 5. Back

88   Including Amnesty (p 24); JUSTICE (p 43); the Law Society (p 46); and Dr Xanthaki (p 51). Back

89   1st Report, Session 2004-05, HL Paper 28. Back

90   p 47. Back

91   p 43. Back

92   p 24. Back

93   QQ 44, 46. Back

94   QQ 61, 63. Back

95   Q 44. Back

96   Q 48. Back

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