House of Lords - European Union

Select Committee on European Union Second Report

CHAPTER 2: the current position—alternative PROPOSALs IN THE COUNCIL

6. The shape and content of the Framework Decision have changed significantly as concerns have emerged in the Council. Exceptions to rights in cases of terrorism and serious crime, the removal of certain rights, and difficulties in ensuring compatibility with the European Convention on Human Rights have resulted in modifications which have increased disagreement among Member States. In April 2006 the Austrian Presidency prepared a compromise text focusing on fewer rights than the original Commission draft and expressing them in more general terms. At its meeting in June 2006 the Justice and Home Affairs Council decided that the Council Working Group should continue to discuss this text as the basis for the Framework Decision alongside the proposal for a Resolution.[7]

7. At the Justice and Home Affairs Council on 4-5 December 2006, the Council agreed that work should continue on the proposal with a view to its adoption as soon as possible. Member States remain divided, however, as to which of the two options should be pursued.[8]

The Austrian Presidency draft Framework Decision

8. The scope of the new draft Framework Decision is outlined in Article 1: to facilitate judicial cooperation in criminal matters, and in particular mutual recognition, and to safeguard the fairness of proceedings. The proposal aims to establish "minimum standards to be respected by Member States throughout the European Union concerning certain rights of persons subject to criminal proceedings". The rights are to be interpreted with respect to the different legal systems and traditions of the Member States and in full compliance with the European Convention on Human Rights (ECHR).

9. The draft Framework Decision focuses on five specific rights:

the right to information;

the right to legal assistance;

the right to legal assistance free of charge;

the right to interpretation; and

the right to translation of documents of the procedure.

The content of each of these rights is considered below.

10. The monitoring and evaluation provisions proposed in the original Commission draft have been reproduced, with important amendments, in Article 7. Formerly, monitoring and evaluation was to be the Commission's responsibility, and it was given an express power to "coordinate" and publish reports. The new article provides for the evaluation of the Framework Decision's effectiveness in accordance with relevant mechanisms of the Treaty on European Union (TEU) and requires Member States to ensure "due cooperation and the provision of information". It is not clear what is meant by mechanisms established under the TEU: the Treaty gives no express power to the Commission to monitor the effectiveness of Framework Decisions. Nor is it obvious from Article 7 of the Framework Decision with whom and to whom Member States are to cooperate and provide information.[9]

THE RIGHT TO INFORMATION

11. The Commission's proposal contained detailed provisions on notification of rights, including the requirement for a Letter of Rights which was to be issued to all suspects in the EU. This has been replaced in the Austrian Presidency text by a general right to "effective information". Article 2 provides for information on the reasons for the arrest and any charge, the nature and cause of the accusation and details of relevant procedural rights to be delivered promptly to a person subject to criminal proceedings or to a European Arrest Warrant (EAW) or other surrender procedure. The information should include notification of the person's right to legal assistance, his right to free legal assistance and his right to free interpretation and translation.

12. Under Article 6(3)(a) of the ECHR, information on the nature and cause of the accusation must be given promptly to an accused. It seems, therefore, that some efforts have been made to align the language of the Framework Decision with that of the ECHR. However, a contentious point, and one which arises in relation to most of the five rights provided by the Framework Decision, is the stage at which the right can be invoked. Unlike the position under the EU proposal, the specific ECHR rights in Article 6(3) only apply to those "charged with a criminal offence".[10] While EU Member States may agree that information relating to the cause of the accusation should be provided to suspects who have been charged, there is not universal agreement that the right should apply at the earlier stage proposed.[11]

THE RIGHT TO LEGAL ASSISTANCE

13. Unlike the Commission's proposal, the Austrian Presidency text provides that the right to legal assistance applies to persons charged with a criminal offence,[12] and not those who are merely "suspected" persons, thereby narrowing the scope of this right. Article 3 provides that the right to legal assistance should include at least "adequate opportunities, time and facilities to communicate and consult with a legal adviser".

14. The amendments to Article 3 appear to bring it closer to the wording of the ECHR. The article would usually apply only to those "charged with a criminal offence", thus limiting the scope of the right to those already protected under the ECHR.[13] The general language of the provision also appears to reflect the terms of Article 6(3)(b) of the ECHR.[14] However, the extension in Articles 3(3) and 3(4) of the right to legal assistance to EAW and other surrender proceedings and to pre-trial detention is controversial: under the ECHR and its caselaw, Article 6 does not apply to extradition proceedings or to certain aspects of pre-trial detention, which are instead covered by Article 5 of the ECHR.[15]

THE RIGHT TO LEGAL ASSISTANCE FREE OF CHARGE

15. Under Article 4, the right to free legal assistance would arise in the case of a person subject to criminal proceedings or to an EAW or other surrender procedure who cannot afford legal assistance as a result of his economic situation. In such cases, the State must bear the costs of legal assistance where the "interests of justice" so require.

16. Member States have questioned the reference to the suspect's "economic situation" and consider that the right to free legal assistance should not necessarily be assistance of the suspect's own choosing (as provided in Article 3). The "interests of justice" test is taken directly from Article 6(3)(c) of the ECHR.

THE RIGHT TO INTERPRETATION

17. Article 5 provides for free interpretation in relation to "procedural acts" that require the participation of the person subject to criminal proceedings or to an EAW or other surrender procedure. Free interpretation would be available where the suspect does not understand or speak the language in which the procedural act takes place.

18. The relevant ECHR article[16] provides for free assistance from an interpreter if an accused "cannot understand or speak the language used in court". Although the wording appears similar to that of the proposed Framework Decision, it seems that some Member States see an important difference (though it is unclear to us) in the scope of the obligation to provide interpretation.[17] Further clarification of "procedural acts" would be helpful to allow the extent of the right to be more clearly ascertained.

THE RIGHT TO TRANSLATION OF DOCUMENTS OF THE PROCEDURE

19. Free translation or "interpretation relevant for the proceedings" is to be provided to those subject to criminal proceedings or to an EAW or other surrender procedure. The right is not an absolute one: it only applies to documents relevant for the participation of the person concerned in any procedural act which are in a language he does not understand, and only to the extent necessary to ensure the effectiveness of the rights of the defence.

20. Although Article 6(3)(e) of the ECHR speaks of interpretation and not translation, the caselaw of the European Court of Human Rights confirms that there is a right to interpretation or translation of all the documents or statements in the proceedings which it is necessary for the accused to understand in order to have the benefit of a fair trial. The Strasbourg Court has, however, made it clear that this right does not go so far as to require a written translation of all items of written evidence or official documents in the procedure.[18]

The Political Resolution

21. In light of increasing objections to the proposed Framework Decision, the United Kingdom, the Czech Republic, Ireland, Malta, Cyprus and Slovakia proposed in April that Member States agree a non-binding Resolution instead. The purpose of the Resolution is to set out practical action to promote fairness in criminal proceedings, with particular reference to access to free legal aid and to an interpreter.[19]

22. The Resolution refers to the need for cooperation among Member States to combat criminal organisations effectively throughout the Union. It stresses the need for compliance with the ECHR and considers that "at this stage of the Union's development it is expedient to take practical steps for maintaining and enhancing observance of certain minimum standards".[20]

23. The Resolution calls on Member States to:

promote full compliance with Articles 5 and 6 of the ECHR as developed in ECHR caselaw.
ensure dissemination of relevant caselaw.
consider a menu of concrete Action Points for provision of information, legal aid and assistance of interpreters/translators.
consider extending and participating in available peer evaluation mechanisms.

24. A proposed Action Points paper accompanies the Resolution and presents practical measures to promote fairness in criminal proceedings. Member States are invited to consider the paper and prepare national action plans as required. The Action Points raised fall under three headings:

access to information;
access to legal assistance; and
access to interpreters.

In relation to each heading, a number of questions are posed which probe the level of protection currently available in Member States and the scope for improving existing protections. The Commission is invited to provide financial assistance to Member States wishing to implement the Action Points.

The current position of negotiations

25. Both the draft Framework Decision and the draft Resolution remain under discussion in the Council Working Group; unanimity would be required for the agreement of either one. Around nine or ten Member States are in favour of a Framework Decision and about six are opposed. The remaining Member States are either undecided or have not yet disclosed their positions (QQ 4 & 9-11).

26. When asked what benefits those Member States which support the Framework Decision see in the proposal, the Attorney General replied that a point made strongly in the context of the negotiations is that the EU has adopted a number of coercive measures and it is important to balance those measures with "some statement that the EU still regards as important defendants' rights" (Q 12).

27. The decision whether to abandon the draft Framework Decision in favour of concluding a political resolution has been left for a future, unspecified meeting of the Working Group. It is difficult to envisage how the deadlock can be broken: the Framework Decision requires unanimity and with "substantial reservations"[21] from a number of Member States this looks unlikely to be achieved; on the other hand, those Member States hoping for a binding decision may not be prepared to sign off on anything else (Q 48).

28. The next chapter of this Report considers the Government's reasons for their change of policy as regards the proposed Framework Decision and assesses whether those reasons justify the present UK position.

7 Unless otherwise indicated, all references to the Framework Decision will be references to the Austrian Presidency draft. Back

8 Europolitics, No. 3204 of 6 December 2006 at page 9. Back

9 Recital 18 provides, however, that the information gathered is to be used by the Commission to produce progress reports. Back

10 Article 6(3) of the ECHR. The general Article 6(1) ECHR right to a fair trial applies to the "determination … of any criminal charge". Further difficulties are created by the fact that the concept of "criminal charge" within the meaning of Article 6 is an autonomous one. This will be considered in more detail in Chapter 3. Back

11 There are concerns that this article would require evidence to be disclosed to a suspect at an early stage of police investigation-scrutiny reservation lodged in relation to Article 2(1) of the proposal (Document 13116/06 DROIPEN 60 of 27 September 2006). Back

12 It also applies to those subject to pre-trial detention and EAW or other surrender proceedings-Article s3(3) and 3(4). Back

13 Although see Chapter 3 for a discussion of the autonomous meaning of "criminal charge" in the ECHR context and the implications for the application of the Framework Decision. Back

14 This article provides that those charged with a criminal offence should have adequate time and facilities for the preparation of their defence. Back

15 See Case 24668/03 Olaechea Cahuas v Spain, judgment of 10 August 2006, paragraph 59. Back

16 Article 6(3)(e). Back

17 Scrutiny reservation lodged in relation to Article 5(1) of the proposal (Document 13116/06 DROIPEN 60 of 27 September 2006). Back

18 See for example Case 18114/02 Hermi v Italy, Grand Chamber judgment of 18 October 2006, paragraphs 69-70. Back