CHAPTER 5: Can EU Criminal Procedure
Legislation Bring Added Value?|
56. In this Chapter we look in more detail at
whether EU legislation can, in principle, bring added value. We
have not sought to examine the detailed substantive provisions
of each proposal as that is the proper function of our scrutiny
of each proposal.
57. Our witnesses placed great emphasis on the
potential benefit of minimum criminal procedure rules to EU citizens
travelling in other Member States and we start by looking at this
point in more detail. However, even if such a benefit is established,
that cannot alone justify EU legislation, given the limitations
imposed by the Treaty. There is also the question whether existing
or alternative measures can achieve the overriding Treaty objective
of facilitating mutual recognition. We examine this question further
- the extent to which mutual recognition measures
already incorporate human rights safeguards,
- whether existing ECHR provisions already meet
the objectives of EU legislation, and
- whether non-legislative measures, such as judicial
training, could meet these objectives.
EU citizens travelling abroad
58. Our witnesses overwhelmingly supported the
proposition that EU legislation in the field of criminal procedure
could be of direct benefit to those who travel from their home
Member State to another and find themselves accused of a crime
or become victims of a crime; and that this was particularly the
case for UK citizens travelling abroad because they expected to
have rights which were of the same high standard as in the UK.
Fair Trials International provided two examples in respect of
defendants to support their view that we were still a long way
from an EU where every Member State offered sufficient fundamental
rights protections for defendants.
Mrs Froud and Mrs Hughes told us about their sons, who
had been attacked abroad. These examples are outlined in Box 5.
UK citizens as defendants and victims
in other Member States
- In 2004 Gary Mann was convicted in Portugal for
football violence following a trial in Portugal and accepted voluntary
deportation rather than implementation of a two year prison sentence.
The next year a British court refused to impose a football banning
order, and described the Portuguese trial as "so unfair as
to be incompatible with [his] right to a fair trial". In
2009 he was arrested under an EAW to serve this sentence and the
UK court felt unable to refuse extradition.
- Following the death of Jonathan Hiles in a nightclub
on the Greek island of Zakynthos, Andrew Symeou was extradited
from Britain to Greece in 2009 to face a manslaughter charge.
He was initially remanded in custody because, as a non-national,
it was assumed that he represented a flight risk. The prison conditions
were very poor. He was only released after 11 months and was eventually
acquitted at trial on the prosecutor's recommendation.
- Mrs Froud's son Matthew died of head injuries
in a cocktail bar on Zakynthos in 2008, subsequently determined
to be an unlawful killing by a British coroner. No-one has yet
been brought to trial. Mrs Froud is deeply unsatisfied with
the post-mortem examination in Greece, the investigation by the
Greek police and the actions of the Greek prosecuting authorities.
The case was closed by the Greek authorities in January 2010,
a decision which was overturned in April 2010 in proceedings she
launched in the Greek court. She feels that, as a victim, she
"had few rights and little support".
- Mrs Hughes' son Robert was attacked in Malia
in 2008 leaving him brain damaged. Although five of his alleged
attackers were sent back to Greece for trial in 2010 under an
EAW, the trials were delayed pending the extradition of a sixth,
and the five have been allowed to return to the UK on bail. Mrs Hughes,
too, is critical of the investigation by Greek police and the
support for both her son and herself as victims. She considers
there to be an imbalance between the rights of defendants and
those of victims.
59. The Law Society started from the premise
that being arrested for a crime is an isolating process, and becomes
doubly so if it occurs abroad under a foreign process and in a
Baroness Ludford MEP also highlighted the possibility of discrimination
in the treatment of foreign nationals, in practice, within a Member
State's criminal justice system which could be alleviated by EU
minimum rights. This
is illustrated by the case of Andrew Symeou.
60. There was a widely shared view that UK standards
were high and that the negotiation of EU legislation was a way
to influence other Member States to raise standards to the UK
level to the benefit of travelling UK citizens.
Specifically in relation to defendants' rights, Vice-President
Reding indicated that she is lobbied by UK citizens and British
MEPs for more to be done to protect UK citizens when they go abroad.
Professor Spencer described how the Police and Criminal Evidence
Act 1984 started a transformation in the UK resulting in UK practices,
such as the tape recording of interviews, which were superior
to those of other Member States.
The Law Society considered that some eastern European Member States
had a worrying lack of protection and thought that many lawyers
throughout Europe regarded the UK jurisdictions as a model of
what they would like to see in their own countries.
The provisions for right of access to a lawyer in England and
Wales were seen as a model, by both the Law Society and Association
of Chief Police Officers.
61. As far as victims are concerned Vice-President
Reding also praised the systems in place for supporting victims
of crime in the UK,
whilst the Lord Chancellor recalled parliamentary pressure supporting
constituents who had been victims of crime in other Member States,
but who considered their treatment to have been unsatisfactory.
Professor Spencer was of the view that, realistically, EU
legislation trying to raise standards has the best chance of actually
62. There are legitimate concerns that EU
citizens who find themselves involved in the criminal justice
system of another Member State, either as defendants or as victims
of crime, are disadvantaged and, in the case of British citizens,
may find themselves with fewer rights than they would expect in
their own country. Having minimum rules operable throughout the
EU can materially improve their position.
Human rights safeguards in mutual
63. The ECHR is widely considered as providing
the benchmark for minimum human rights standards. The rights it
confers are recognised in EU law as a constituent element of "general
principles of the Union's law"
and of the Charter of Fundamental Rights of the European Union.
Some of the rights set out in the Charter correspond directly
to those in the ECHR.
The Charter, which has the same legal status as the Treaties themselves,
is primarily addressed to Union institutions, in order to ensure
that EU legislation conforms to fundamental rights, but it also
applies to Member States "only when they are implementing
64. Each item of EU legislation on mutual recognition
already asserts in its preamble that the measure conforms to the
ECHR and the Charter of Fundamental Rights of the European Union,
and therefore does not inhibit mutual recognition being refused
on the grounds of violation of either.
65. The measures covering mutual recognition
of confiscation orders, financial penalties and pre-trial detention
also include a provision to the same effect in their substantive
provision setting out the scope of the legislation. However when
it comes, in all cases, to listing the grounds on which mutual
recognition can be refused in the substantive text, it is notable
that they do not include violation of human rights, whereas there
are several other grounds which are commonly listed.
66. Professor Peers drew attention to the
legislation on mutual recognition of financial penalties which
includes a provision expressly permitting refusal of mutual recognition
of a foreign financial penalty in the (albeit unlikely) event
that the certificate from the requesting Member State explicitly
indicates that there may have been a human rights breach. Therefore
it is possible to infer that, in the absence of such a statement,
refusal on this ground is impossible. He also indicated that a
number of national courts have asked the Court of Justice for
an interpretation of the EAW legislation on refusal on human rights
grounds without receiving a clear answer. On the other hand, Professor Spencer
expressed the view that, if faced with the issue, the Court of
Justice would interpret the EAW as permitting refusal of mutual
recognition if the national court of the Member State asked to
execute an EAW has applied a plausible interpretation of human
rights. Certainly in the UK, section 21 of the Extradition Act
2003 permits refusal of extradition on human rights grounds.
Other Member States have similar domestic provisions.
67. For its part, the CCBE welcomed the ability
to decline mutual recognition on human rights grounds as a useful
cross-check between Member States on human rights grounds rather
than as an attack on the legal system of the requesting country.
68. However, even if it is possible to refuse
mutual recognition on human rights grounds it can prove difficult
in practice to establish such a breach. Professor Peers indicated
that it would be necessary to establish a flagrant disregard,
which was particularly difficult to do in relation to the right
to a fair trial conferred by Article 6 ECHR, because that involves
arguing about something that might happen in the future in another
69. Current EU legislation, subject as it
is to the Charter of Fundamental Rights, does permit the court
of a Member State to refuse mutual recognition on human rights
grounds in justified cases. However there is reluctance by judicial
authorities to do so. If such refusal became widespread there
is a risk of undermining mutual trust because it calls into question
the human rights protection provided by the Member State requesting
mutual recognition. EU legislation setting down minimum rights
can help avoid this risk.
The European Convention on Human
70. Our witnesses identified three broad areas
where EU legislation could be regarded as bringing added value
over and above rights conferred by the ECHR.
THE COVERAGE OF EU LEGISLATION
71. The ECHR does not provide comprehensive coverage.
For example, it is silent on the rights of victims of crime
although some rights conferred by the ECHR, such as those governing
the time for bringing a defendant to trial, and requiring a proper
investigation of a death, indirectly assist the victims of crime.
72. Furthermore EU legislation can add a level
of detail to broadly drawn ECHR rights. For example, the ECHR
right to a fair trial includes the specific right for a person
charged with an offence "to have the free assistance of an
interpreter if he cannot understand or speak the language used
in the court". Professor Peers pointed out that this
has been interpreted by the European Court of Human Rights at
Strasbourg (the ECtHR) as covering the right to the translation
of documents. EU Directive 2010/64, which is measure A on the
criminal procedure Roadmap, now clarifies this ECHR right by including
the right to interpretation of conversations with a lawyer and
by imposing safeguards against waiver of a right to interpretation.
The Ministry of Justice also pointed out that this Directive has
also added to the ECHR right the right to interpretation at the
investigative stages of a criminal procedure, and the express
clarification that translation must be of sufficient quality and
applicable to essential documents.
73. The flexibility of EU legislation was highlighted
by the Bar Council as an advantage over the ECHR.
The qualified majority required in the EU Council and the agreement
of the European Parliament required to adopt or amend EU legislation
is less daunting than the unanimity of 47 even more diverse states
needed to amend the ECHR. Furthermore, as JUSTICE pointed out,
the ECHR and the ECtHR operate within a framework that tries to
reach accord between 47 different countries which have a much
wider breadth of different legal systems than even the 27 EU Member
THE ENFORCEMENT OF EU LEGISLATION
74. EU criminal procedure legislation adopted
post-Lisbon takes the form of directives which are capable of
having direct effect. As a consequence, any defendant who considers
that they are being denied rights by state authorities can invoke
those rights before the domestic court and seek an immediate and
effective remedy in the course of the relevant criminal proceedings.
It is also possible for disputed issues of interpretation of the
EU legislation to be resolved by referring the matter to the Court
of Justice for guidance. In the ordinary course of events such
guidance can be given in approximately 18 months, but there is
a procedure for urgent cases, introduced specifically to deal
with the expansion of the Court of Justice's jurisdiction into
matters of justice and home affairs, under which guidance can
be delivered in about three months.
75. Even before the Lisbon Treaty the Commission
was able to monitor the effectiveness and implementation of EU
legislation in the area of criminal procedure. However it was
unable to take infringement proceedings for failure to implement,
or for incorrect implementation. It was effectively limited to
naming and shaming.
Following the Lisbon Treaty the Commission can now take infringement
proceedings and recalcitrant Member States could find themselves,
ultimately, facing a significant fine. The power of an individual
to invoke direct effect of a directive, or of a national court
to seek guidance on the interpretation of a EU directive, also
have the indirect effect of encouraging full and correct implementation
by all Member States.
76. This can be contrasted with the position
under the ECHR. Individuals seeking to vindicate their rights
under the ECHR must first of all exhaust domestic remedies and
then bring proceedings before the ECtHR which currently has a
backlog of over 150,000 cases with an average waiting time of
five years. Even then the power of the ECtHR is to declare a breach,
leaving the state party to resolve the violation itself.
It can order financial recompense to the person who has suffered
a violation of his or her rights, but this is generally modest.
77. Of course, states which are party to the
ECHR can choose to integrate ECHR rights within their own legal
systems as has happened in the UK by the Human Rights Act 1998,
which is intended to enable UK courts to vindicate ECHR rights,
subject to parliamentary sovereignty, and to provide domestic
remedies for breaches. That, however, is the choice of each Member
State. Even if it were the case that each Member State
has its own equivalent of the Human Rights Act this would not
fill in the gaps in the ECHR or provide the extra clarification
that EU legislation can provide.
78. EU legislation brings a considerable added
value over the ECHR in that it can be effectively enforced by
individuals directly in all national courts and by the Commission
through infringement proceedings. It also can cover matters not
adequately covered by the ECHR and is more flexible.
Alternatives to criminal procedure
79. The case for EU legislation is reduced if
it is possible to facilitate mutual trust and mutual recognition
by non-legislative means such as judicial training, judicial exchanges
or by improving the mechanisms for liaison between judicial authorities.
80. Professor Spencer drew on his personal
experience that judges do meet, and exchanges do take place, and
that this builds up a greater understanding and good relations.
JUSTICE and the CCBE both considered that the alternatives to
legislation were helpful, that there was still much that could
be done in terms of training, but that this could only complement,
not replace, the establishment of minimum standards by legislation.
81. Vice-President Reding accepted that mutual
recognition has to be complemented by the judicial network that
reinforces it, such as Eurojust and the European Judicial Network
on criminal matters and by judicial training.
These are described in Box 6.
Eurojust and the European Judicial Network
- Eurojust is an EU body whose role is to improve
the fight against serious crime by facilitating optimal co-ordination
of action for investigations and prosecutions covering the territory
of more than one Member State. The Stockholm Programme calls for
Member States to implement recent legislation on the strengthening
- The European Judicial Network is a network of
national contact points for the facilitation of judicial co-operation
in criminal matters which exchanges information, provides advice,
and can act as an intermediary.
82. Vice-President Reding also pointed to a new
judicial training programme that had been tabled by the Commission
which aimed to train 700,000 practitioners in European law matters
by 2020. This
has been the subject of scrutiny by our Committee and supported
in principle, although we have observed that the financing of
this programme is uncertain.
83. The Lord Chancellor saw both judicial training
and improved judicial co-operation as helpful, but not a top priority.
The Ministry of Justice warned that it was not always the case
that EU instruments are the right solution to protecting the rights
of citizens in criminal proceedings across Member States, but
accepted that EU legislation could play an important role in supporting
84. Whilst non-legislative actions, such as
improved judicial training and improvements to Eurojust and the
European Judicial Network, are helpful in building mutual trust
between judicial authorities, they can only complement, not replace,
EU legislation setting minimum rights for defendants and victims.
83 Fair Trials International, para 6. Back
Fair Trials International, para 17. Back
Fair Trials International, paras 46 and 47. Back
Mrs Joanne Froud. Back
Mrs Margaret Hughes. Back
Q 28.** Back
Baroness Ludford, para 14. Back
Bar Council, para 1.1.3; Ministry of Justice, para 32; City of
London Law Society's Corporate Crime and Corruption Committee,
para A(i). Back
Q 49. Back
Q 12. Back
Q 33.** Back
QQ 30-32.** Back
Q 59. Back
Q 75. Back
Q 8. Back
The general principles of EU law have been developed by the Court
of Justice in order to assist in interpreting EU law and in testing
its validity. Back
Articles 4 and 47 of the Charter cover the prohibition of torture
and inhuman or degrading treatment or punishment, and the right
to an effective remedy and to a fair trial. These correspond to
Articles 3 and 6 of the ECHR. Back
Article 51(2); Q 5 (Professor Peers) and Q 56 (Vice-President
Such common grounds for refusal of mutual recognition include:
that the person concerned has already been prosecuted for the
offence (ne bis in idem); that the activity in question
is not a crime in the requested Member State (dual criminality);
the offence is time barred in the requested Member State or the
person could not be prosecuted there because of immunity granted
there or because they are below the age of criminal responsibility.
Q 3. Back
Q 29. Back
Q 3. This is borne out by domestic case law such as Symeou
v Greece  EWHC 897 (Admin). Back
Ministry of Justice, para 12. Back
Q 5. Back
Ministry of Justice, para 18. Back
Bar Council, para 1.2. Back
Q 37. Back
Bar Council 1.2. Back
Ministry of Justice, para 28. Back
An exception is Directive 2004/80 on compensation to crime victims
which has an internal market legal basis. On 31 March 2011 the
Commission secured a fine from the Court of Justice on Greece
of 3 million for late implementation of this Directive (Case
Q 37 (JUSTICE). Back
QQ 8 and 11. Back
QQ 32 and 35. Back
Q 54. Back
Decision 2009/426. Back
Communication from the Commission: Building Trust in EU-Wide Justice;
a New Dimension to European Judicial Training, COM (2011) 551. Back
Q 90. Back
Ministry of Justice, paras 9 and 13. Back