Memorandum by Fair Trials International
ABOUT FAIR
TRIALS INTERNATIONAL
1. Fair Trials International (FTI) is a
UK-based NGO that works for fair trials according to international
standards of justice and defends the rights of those facing charges
in a country other than their own.
2. 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.
3. Although FTI usually works on behalf
of people facing criminal trial 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, in October 2007 launched an ongoing campaign
on protecting and promoting fundamental rights in relation to
criminal justice throughout the EU.
4. FTI welcomes the Sub-Committee's decision
to conduct an enquiry into the new arrangements for Freedom, Security
and Justice which would be introduced by the EU Reform Treaty.
THE IMPACT
OF THE
NEW DECISION
MAKING PROCESS
IN THE
AREA OF
FREEDOM, SECURITY
AND JUSTICE
Co-decision and Qualified Majority Voting
5. The Reform Treaty has a significant impact
on the decision-making process for Freedom, Security and Justice.
While the general principles of mutual recognition and subsidiarity
remain at the heart of policy-making, the Pillar structure will
be abolished and decision-making will follow the co-decision process,
which is the norm on other areas of EU policy.
6. The Treaty therefore extends the Qualified
Majority Voting (QMV) rule to a number of new areas currently
under the unanimity requirement. These include asylum, immigration,
police cooperation and judicial cooperation in criminal matters.
7. The QMV rule is designed to facilitate
efficient decision making. The lowering in the decision threshold
under the new rules should improve efficiency by increasing the
probability of proposals being approved, and decreasing the likelihood
of governments blocking proposals. In principle, this is a positive
development that may help break the deadlock in debate over areas
such as minimum procedural safeguards for suspects in criminal
proceedings.
8. FTI supports this commitment to more
efficient decision-making, and hopes that greater democratic accountability
and transparency will come with the co-decision process—factors
that have sometimes been lacking in policy-making on co-operation
in policing and judicial matters to date.
9. However, the QMV rule will be balanced
by flexibility mechanisms that will apply to proposals establishing
minimum standards in criminal law. Such flexibility mechanisms
will not apply to matters concerning mutual recognition, since
these require the participation of all Member States and depend
on the condition of reciprocity.
Emergency Brake mechanism
10. The first of these is the "emergency
brake" mechanism. This allows a single Member State to refer
a legislative proposal to the European Council when it has concerns
that the proposal might affect fundamental aspects of its criminal
justice system. This will result in the suspension of the legislative
procedure for a period of up to four months, during which the
Council will need to come to a unanimous agreement over the proposal.
11. In order to speed up the decision making
process, the Council is not able to ask the initiating party to
make amendments or propose a new draft. If the Council is not
able to reach an agreement then the second of the flexibility
mechanisms—the "enhanced co-operation" process—may
be employed.
Enhanced co-operation
12. Enhanced cooperation allows a minimum
of a third of all Member States to move forward with the original
proposal and adopt legislation that will apply among them, but
not in the other Member States. The only requirement to enter
into enhanced cooperation in this way is that the Member States
notify the European Council, Parliament and Commission.
13. FTI acknowledges that it is difficult
to reach an agreement between as many as 27 Member States. The
deadlock in discussions on the draft Framework Decision on minimum
procedural safeguards for suspects in criminal cases is a perfect
example of the sensitivities and difficulties that make unanimous
agreement on the Area of Freedom, Security and Justice issues
so elusive.
14. In that sense, the application of enhanced
cooperation in JHA matters is positive, as it allows one third
of the MS to move forward and adopt legislation within the scope
of the EU. Such legislation, even if not common to all Member
States, will have to comply with the EU standard of fundamental
rights principles (including those expressed in the Charter).
Moreover, it is possible that recalcitrant Member States will
opt-in to such legislation in the future.
15. However, by removing the possibility
of the Council requesting the submission of a new draft, the Reform
Treaty risks suppressing adequate discussion and debate. That
it will be easier for Member States to use enhanced cooperation
risks undermining the search for, and preventing the adoption
of, more consensual solutions.
16. FTI is concerned that removing the possibility
of the Council requesting further discussion and redrafting of
proposals, and the ease of entering into enhanced cooperation,
may lead to the adoption of unbalanced proposals without adequate
scrutiny.
Lack of impact assessment under the shared right
of initiative
17. The Reform Treaty provides for a shared
right of initiative between the European Commission and a minimum
of a quarter of Member States. However, Member States are not
required to conduct the same kind of extensive and rigorous impact
assessment that the Commission must carry out.
18. FTI has strong concerns about this new
provision. The impact assessment is of paramount importance in
producing balanced and effective policy, and FTI regrets that
Member States will not have to produce similar preparatory work
when using their initiating power.
Conclusions
19. While FTI welcomes the commitment to
improving the efficiency, transparency, and accountability of
decision-making in JHA issues, we remain deeply concerned about
the potential consequences of the flexibility mechanisms.
20. Application of the emergency brake and
enhanced cooperation mechanisms may lead to fragmented decision-making,
resulting in a move away from harmonisation and increasing the
complexity and opacity of EU policy on co-operation in criminal
matters. The profusion of a complex and fragmented system of rules
would make understanding judicial cooperation more confusing,
both for the citizen and for the national bodies and officials
responsible for implementing cooperative measures. The flexibility
mechanisms therefore have the potential to significantly undermine
the efficiency of cooperative efforts and hamper the creation
of an area of justice, freedom and security.
21. FTI therefore urges Member States not
to use enhanced cooperation as a means to bypass proper debate,
scrutiny and assessment or to avoid compromise, and to bear in
mind that the creation and sustainability of an area of Freedom,
Security and Justice relies on Member States progressing together
on matters of judicial cooperation.
22. A lack of uniformity brings a greater
need for visibility and transparency in all measures, both to
allow appropriate scrutiny and to ensure the practicability of
such measures. Ensuring such transparency should be a key responsibility
of all EU institutions and Member States.
THE CHARTER
OF FUNDAMENTAL
RIGHTS
Compliance of EU laws with fundamental rights
23. FTI supports the Charter's ambition
to strengthen protection of fundamental rights in light of changes
in society, social progress and scientific and technological development,
and to increase the clarity and visibility of fundamental rights
protections so that EU citizens can be better informed about their
rights, and better armed to defend themselves against fundamental
rights violations.
24. FTI welcomes the cross-reference to
the Charter of Fundamental Rights in the new Treaty, which will
render the Charter legally binding for all EU institutions, as
well as for Member States in the implementation and application
of all EU laws.
25. We particularly welcome the fact that
all new proposals, whether initiated by the Commission or by Member
States, must conform with the provisions laid down in the Charter.
Opt-outs from the Charter
26. The UK has negotiated a Protocol that
provides an opt-out, meaning that the Charter will not be applied
in the UK, and that it cannot be used to challenge existing UK
legislation in the courts or to introduce new rights in UK law.
Ireland and Poland have also retained the right to join this protocol
and opt-out of the Charter.
27. FTI is deeply disappointed by the British
Government's negotiation of an opt-out from the Charter. Opt-outs
of measures adopted within the area of Freedom, Security and Justice
and from the Charter will undermine the basis of the EU by considerably
increasing the complexity of the EU legal landscape, and consequently
jeopardising its practicability.
28. More importantly, the negotiation of
an opt-out from the Charter puts in question the level of the
UK's commitment to securing fundamental rights for all EU citizens,
and for its own citizens abroad.
29. In terms of rights of suspects in criminal
proceedings, UK citizens generally enjoy more extensive rights
than the minimum standards set out in the Charter. UK citizens
take for granted the right to legal representation, the presumption
of innocence, and the right to an impartial, public hearing. However,
those rights cannot be taken for granted in all corners of the
European Union (for more details on the discrepancies existing
within the EU, see the case studies we submitted in March 2007
to the Home Affair Select Committee—attached).
30. The UK's opt-out sends a disappointing
signal about its commitment to securing equal rights for all EU
citizens, and its commitment to protecting the rights of British
citizens facing criminal proceedings in other European countries.
31. The very fact that the UK was able to
negotiate this opt-out also sends a negative message about the
EU's commitment to fundamental rights. The Treaty on European
Union states that respect for human rights and fundamental freedoms
is one of the founding principles of the EU. As such, allowing
any exception in this domain is not only inconsistent but it undermines
the very basis of a union of values. It sends a poor signal of
the importance the EU attributes to human rights. By accepting
different standards in this area the EU seriously compromises
its credibility and undermines the effectiveness of its human
rights policy as a whole.
Risks of judicial overlap
32. FTI is also concerned that the Charter
risks creating overlap and confusion between the spheres of competence
of the Court of Human Rights and the Court of Justice. It is not
clear what would happen if rulings made by the Court of Justice
contradict judgments made by individual national states and the
European Court of Human Rights. There would currently be no way
to resolve the conflict apart from political negotiations. However,
the risk of jurisprudential contradiction is limited as each Court
takes account of the other's jurisprudence in its own decisions.
33. The intention of the Charter is that
those rights which correspond to ECHR rights should be interpreted
consistently with ECHR rights. However the existence of two separate
texts might create confusion and FTI therefore welcomes the possibility
of accession of the EU to the European Convention of Human Rights.
Exclusions of internal security measures from
the scope of the Charter
34. Maintenance of law and order and the
safeguarding of internal security will remain the sole responsibility
of Member States. FTI is concerned that the Reform Treaty, while
specifically excluding EU involvement in these matters, explicitly
allows for extra-EU inter-governmental cooperation and coordination.
35. FTI has significant concerns about the
transparency, fairness, and democratic accountability of previous
arrangements such as the G6 group and the Prüm Treaty, which
have been developed outside of the EU's normal processes, but
wield significant influence over EU policy-making. FTI is deeply
convinced that minimum provisions for the protection of fundamental
rights need to be systematically extended to these areas.
36. FTI therefore urges all Member States
to commit themselves to carefully balancing the interests of security
with those of freedom and justice when legislating. Moreover,
Member States should always respect the principle of proportionality
when adopting anti-terror and other measures related to their
internal security.
November 2007
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