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
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
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
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
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