The European Union's Policy on Criminal Procedure - European Union Committee Contents

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 by considering—

  • 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.[83] 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.[84]

  • 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.[85]
  • 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".[86]

  • 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.[87]

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 foreign language.[88] 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.[89] 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.[90] 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.[91] 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.[92] 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.[93] 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.[94]

61.  As far as victims are concerned Vice-President Reding also praised the systems in place for supporting victims of crime in the UK,[95] 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.[96] Professor Spencer was of the view that, realistically, EU legislation trying to raise standards has the best chance of actually raising them.[97]

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 recognition legislation

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"[98] 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.[99] 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 Union law".[100]

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.[101]

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.[102]

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.[103]

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 country.[104]

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 Rights

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.


71.  The ECHR does not provide comprehensive coverage. For example, it is silent on the rights of victims of crime[105] 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.[106] 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.[107]

73.  The flexibility of EU legislation was highlighted by the Bar Council as an advantage over the ECHR.[108] 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 States.[109]


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.[110] 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.[111]

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.[112] 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.[113] 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 legislation

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.[114] 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.[115]

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.[116] 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 of Eurojust.[117]

  • 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.[118] 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.[119] 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 mutual recognition.[120]

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

84   Fair Trials International, para 17. Back

85   Fair Trials International, paras 46 and 47. Back

86   Mrs Joanne Froud. Back

87   Mrs Margaret Hughes. Back

88   Q 28.** Back

89   Baroness Ludford, para 14.  Back

90   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

91   Q 49. Back

92   Q 12. Back

93   Q 33.** Back

94   QQ 30-32.** Back

95   Q 59. Back

96   Q 75. Back

97   Q 8. Back

98   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

99   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

100   Article 51(2); Q 5 (Professor Peers) and Q 56 (Vice-President Reding). Back

101   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.  Back

102   Q 3. Back

103   Q 29. Back

104   Q 3. This is borne out by domestic case law such as Symeou v Greece [2009] EWHC 897 (Admin). Back

105   Ministry of Justice, para 12. Back

106   Q 5. Back

107   Ministry of Justice, para 18. Back

108   Bar Council, para 1.2. Back

109   Q 37. Back

110   Bar Council 1.2. Back

111   Ministry of Justice, para 28.  Back

112   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 C-407/09). Back

113   Q 37 (JUSTICE). Back

114   QQ 8 and 11. Back

115   QQ 32 and 35. Back

116   Q 54. Back

117   Decision 2009/426. Back

118   Communication from the Commission: Building Trust in EU-Wide Justice; a New Dimension to European Judicial Training, COM (2011) 551. Back

119   Q 90. Back

120   Ministry of Justice, paras 9 and 13. Back

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