Select Committee on European Scrutiny Appendices to the Minutes of Evidence


Memorandum submitted by Stephen Jakobi of Fair Trials Abroad


  1.  The Fair Trials Abroad Trust ("Fair Trials Abroad") is the European Union's only Non-Governmental Organisation concerned with "due process" problems of EU citizens out of country. It works in close association with appropriate departments of the European Parliament and the European Commission. Formed in July 1994, FTA has a mixed international team of professional staff and volunteer legal correspondents within EU member states and third countries.

  2.  The Trust is specifically concerned with transnational defence problems of the inter-state machinery of criminal justice.

  The inter-state aspects of criminal justice are amongst those matters reserved to the "Third Pillar"(council of national government ministers) by the treaty of Maastricht and are not subject to collective democratic supervision. The European Parliament, the European Commission and the European Court of Justice have no competence in matters reserved to the Third Pillar. The European Commission was recently given the right to be present at the appropriate council of ministers but otherwise does not take part in the decision-making processes. It follows that the only checks on collective ministerial decisions binding the European Union Member States with regard to justice and law enforcement are the influence and control mechanisms that national elected representatives have on their own ministers of justice.

  3.  The historical development of the protection of fundamental rights of the citizen within the sphere of Justice and Home Affairs is a clear indication of the need for a working mechanism of accountability and control of Council decisions by the parliaments of member states.

  In this paper we therefore examine the history of the proposed European Legal Area, and make some suggestions as to what may be done in the future.


  4.  The Treaty of Amsterdam (June 1997) states that the European Union will maintain and develop an area of Freedom, Security and Justice. "The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States" (Art.F. l ).

  5.  The European Council, the EU's supreme governing body, dedicated it's meeting at Tampere (October 1999) to the principles behind a programme to create this area, now generally described as the European Legal Area. The Tampere Conclusions set out, inter alia, two complimentary strategies in the field of Criminal Justice.

  6.  For "Freedom" a Charter of Fundamental Rights was to be created. The Council appointed a convention made up of government and parliamentary representatives from each of the member states together with European parliamentarians to produce a charter. It will therefore be seen that the national parliaments had a role in the creation of the charter.

  7.  For "Security" the Council called for an action plan for such measures as a European prosecutors organisation, fast track extradition and mutual enforcement of national court orders and judgements. Both initiatives were to be submitted by the European Commission at the Nice summit in December 2000.

  8.  What emerged at Nice was a Charter that was a pious declaration of principles which was found to be unenforceable and thus without legal effect. In terms of the rights of the defence, it did little more than confirm what is already stated in the 50-year-old European Convention on Human Rights (ECHR). Regarding Security, a detailed programme was adopted setting out grades of priority attached to 24 measures proposed concerning Mutual Recognition.

  9.  In sum there has been a violent tilt towards the prosecution of crime without any protection of the citizen to create the balance required by the scales of justice. The terrible events of 11 September and the heightened concern for security have apparently resulted in expedited programmes for the European Arrest warrant and abolition of extradition safeguards without consideration of the Civil liberties problems involved.


  10.  Although in theory the members of the Council of Ministers of Justice are individually responsible to their own parliaments there has been a signal failure to establish control over their actions to date.

  11.  The main factors behind this appear to us to be as follows:


  Until recently there has been a lack of transparency in decisions by the Council and in certain instances this continues. This enables an individual Minister of Justice to conceal his part in an unpopular or unwise decision.

Lack of a collective mechanism

  Since there appears to be no collective forum for national parliamentary representatives to confer and take action at a Community level individual parliaments are left to exert what leverage they can on the collective might of EU Governments acting in concert.

Lack of a responsible secretariat

  The council of Ministers of Justice has a high-powered secretariat in Brussels acting in concert with a permanent delegation of national civil servants (COREPOR). Individual parliaments, on the other hand, must rely only on national secretariat staff of the various committees, with no European links as far as we can see, to advise on policy and events.


The European Parliament

  12.  In 2000 the European Parliament commissioned a review of the state of human rights during the year. The review coincided specifically with our concern about the gap between what is stated in fair trials law and what happens in the courts on a daily basis. The European Parliament have since debated the findings of their review and their recommendations are published in a Resolution (A5-0223/2001). The European Parliament recommends inter alia that a permanent dialogue be set up between political institutions, practitioners and NGOs to improve the widest possible dissemination of best practice. It further recommends that a network be set up consisting of legal experts and jurists from each member state to ensure a high level of expertise, and to assess implementation of each of the rights laid down in the Charter of Fundamental Rights and Freedoms. The Parliament also recommends that member states agree minimum common standards for aspects of procedural law, in particular rules covering pre-trial orders and the rights of the defence in order to guarantee a common level of fundamental rights protection throughout the EU.

  However there has been no sign that any of these proposals have been agreed to, or implemented by, the Council of Ministers.

The Commission

  13.  Commissioner Vitorino is, it is understood, shortly to produce some proposals that may amount to a practical programme for ensuring fundamental rights.


  14.  We do not see the possibility of effective control without transparency, a collective mechanism for control, and an independent Secretariat. It is likely that a second chamber for the European Parliament, as envisaged by our Prime Minister in his Warsaw speech last summer, would solve these problems. However, such solutions are many years away since a functioning second chamber must await the conclusions of the 2005 Summit.

  15.  In the meantime a possible temporary solution would be the creation of a European Ombudsman's office with powers to demand papers and enquire into the maladministration of judicial systems from national governments upon complaint by the public or Members of parliament and the duty to table individual findings as well as annual reports with all EU parliaments simultaneously. Such a system could be incorporated into the new constitutional settlement of the EU when it has been determined.

2 October 2001

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