European Scrutiny Committee Contents


10 Roadmap for the protection of suspects in criminal proceedings

(30753) 11457/09 — Roadmap with a view to fostering protection of suspected and accused persons in criminal proceedings

Legal base
Deposited in Parliament8 July 2009
DepartmentJustice
Basis of considerationEM of 22 July 2009
Previous Committee ReportNone; but see HC 41-xxii (2006-07), chapter 6 (16 May 2007); HC 41-xii (2006-07), chapter 7 (7 March 2007); and see HC 34-xl (2005-06), chapter 7 (1 November 2006); (27268) 15432/06 HC 34-xxxiv (2005-06) chapter 15 (5 July 2006); HC 34-xxvi (2005-06) chapter 14 (26 April 2006); HC 34-xxi (2005-06), chapter 18 (8 March 2006)
To be discussed in Council23 October 2009
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information requested

Background

10.1 The "roadmap" is a Council political declaration in another form. It sets out the Swedish Presidency's policy for the development of procedural safeguards in criminal proceedings in the EU. It is non-binding statement of intent to which Member States are asked to sign up.

The Document

INTRODUCTION

10.2 The introductory paragraphs set out the premise of the roadmap. A consequence of the successful establishment of an area of free movement and residence in the EU is an increase in cross-border crime. This means a growing number of people are becoming involved in criminal proceedings in a Member State other than that of their residence. In general, these people will be unaware of what rights they may have, added to which is often a language barrier. This, the Presidency argues, "calls for specific measures on procedural rights, in order to ensure the fairness of the criminal proceedings". Such measures "will enhance citizens' confidence in a European Union that guarantees procedural rights".

10.3 They will also help develop the principle of mutual recognition of judicial decisions, a cornerstone of cross-border judicial cooperation under the third pillar of the EU. However, for mutual recognition to work the competent authorities of Member States must have trust in the criminal justice systems of other Member States — the principle of "mutual trust"; and common EU standards for the protection of procedural rights is an important way of developing mutual trust within the EU.

10.4 The Presidency points to recent studies that show wide support among legal experts for EU legislation on procedural rights.[29] These sentiments are echoed in the European Parliament. In its Communication for the Stockholm programme, the European Commission observes that strengthening the rights of the defence is vital to maintaining mutual trust between Member States and public confidence in the EU.[30] A lot of progress has been made in the area of judicial and police cooperation on measures that facilitate prosecution; "[i]t is now time to take action to improve the balance between these measures and the protection of procedural rights of the individual. We must be able to guarantee our citizens safety and the rule of law, no matter where in the Union they decide to study, work or live".

10.5 The Presidency acknowledges that the European Convention on Human Rights (ECHR) provides "a very important common basis" for Member States to have trust in each other's criminal justice systems, but considers that nonetheless there is room for action by the EU "to ensure full implementation and respect of ECHR standards, as well as, where appropriate, to expand existing standards to make their application more uniform".

10.6 In terms of procedure, the Presidency recommends a step-by-step approach to the measures set out in the roadmap (the Commission's 2004 all-encompassing draft Framework Decision on procedural rights was abandoned in 2007 through lack of agreement in the Council).

COUNCIL STATEMENT

10.7 The Council is invited to agree to the Roadmap on procedural rights. The rights included in the roadmap are considered to be "fundamental priority rights" which should be given priority at this stage. The Roadmap may in due course be complemented by further legislative and non-legislative measures. The Council is also invited to make the following statement:

"The Council agrees that the measures listed in the "roadmap on procedural rights" should be examined and adopted with a view to creating a set of procedural rights fostering the protection of suspected and accused persons in criminal proceedings. The Commission is invited to submit proposals regarding the measures set out in the roadmap, and to present the Green Paper mentioned under point F. The Council will examine all proposals presented in the context of the roadmap and pledges to deal with them as matters of priority. The Council shall act in full cooperation with the European Parliament in accordance with the applicable rules".

MEASURES

10.8 Measure A concerns "Translation and Interpretation". The Commission has already proposed a draft Framework Decision on this.[31]

10.9 Measure B concerns "Information on Rights and Information about the Charges". This states that a suspect should get information on his/her basic rights in writing, preferably in the form of a letter of rights. The suspect should also be entitled to receive information about the nature and cause of the accusation against him or her. This information should include access to the "file" for the individual concerned.

10.10 Measure C concerns "Legal Aid and Legal Advice". The short explanation states that the right to legal advice is fundamental to safeguarding the fairness of proceedings; the right to legal aid should ensure equal access to legal advice.

10.11 Measure D concerns "Communication with Relatives, Employers and Consular Authorities". The short explanation states that a person deprived of liberty must be able to inform relatives, employers and consular authorities of the deprivation of liberty.

10.12 Measure E concerns "Special Safeguards for Vulnerable Persons". The short explanation states that it is important that special care is shown to vulnerable suspects and defendants, in order to safeguard the fairness of proceedings.

10.13 Measure F concerns "A Green Paper on the Right of Review of the Grounds for Detention". The short explanation states that the time a suspect spends in pre-trial detention varies considerably between Member States. "Long periods of detention are detrimental for the individual, can have a negative effect on the mutual trust and the judicial cooperation between Member States and do not represent the values for which the European Union stands". The Green Paper should examine the possibility of establishing a periodical review for the justification of continued detention.

The Minister's Explanatory Memorandum

10.14 In his Explanatory Memorandum of 22 July, the Parliamentary Under-Secretary of State at the Ministry of Justice (Lord Bach) states that the Government agrees that there is room for further action at EU level in the field of procedural safeguards, beyond what is already provided by the ECHR, to further enhance trust in other Member States' justice systems. The Minister describes the roadmap as a "direction of travel", whose object is to ensure "full implementation and respect of Convention standards". The Government supports this starting point and considers it important "to build on the existing rights and the important work which has already been done to drive up criminal procedural law standards."

10.15 The Minister describes the draft Council statement as "uncontroversial", but thinks that the reference to "creating a set of procedural rights" could give the misleading impression that the roadmap is focussed on creating new rights or legislation, neither of which he believes to be the case. The statement should be refined to make clear that the intention is to "enhance existing rights, not create new ones".

10.16 He supports the step-by-step approach as being a more pragmatic and effective means of enhancing procedural safeguards than an all-encompassing instrument as proposed by the Commission.

10.17 Turning to each measure the Minister states as follows.

  • A — interpretation and translation. The Government broadly welcomes these proposals
  • B — information on rights and nature of charge. The Government would in principle welcome action on a letter of rights and entitlement to receive information about the nature of the charge. The reference to "file" is a misnomer in the context of the common law; and, irrespective of the vocabulary, the Government has general concerns about access to investigation papers being prescribed at EU level.
  • C — legal aid and legal advice. The Government would welcome a procedure that guaranteed British citizens adequate access to legal advice and representation abroad, but would not support anything that would increase its current obligation under Article 6(3)(c) of the ECHR to provide legal assistance. The Government will therefore seek clarification of this measure, while welcoming in principle its inclusion for action.
  • D — communication with relatives, employers and consular officials. The Government has no objections to this measure but is uncertain whether it is necessary — or whether adherence to the 1963 Vienna Convention on Consular Relations is problematical in the EU. It is also unclear why there is a need for an employer to be contacted. The Government will seek further clarification.
  • E — special safeguards for vulnerable persons. The Government will clarify which category of people the measure is intended to cover.
  • F — review of the grounds of detention. The recommendation for a Green Paper sits at odds with the other measures, all of which propose concrete action. The Government will discuss with partners whether the inclusion of this measure is appropriate.

Conclusion

10.18 We thank the Minister for his Explanatory Memorandum; but we are unclear why, if all of the institutional actors in the EU now advocate a step-by-step approach to enhancing procedural safeguards in the EU, there is a need for a politically binding Council resolution encompassing all these rights. Our concern is that the draft Council statement asks Member States to agree not only that the measures in the roadmap be "examined", but also "adopted". Is it really the case that the Government can at this stage agree that a measure on reviewing grounds of preventative detention, measure F, should be adopted? We strongly urge the Government not to bind itself politically to such "a direction of travel" (as the Minister describes it) at this stage, but to consider each right in turn without advance preliminary political commitment. And if the statement is to be retained, to seek with partners to remove the commitment to "adopting" the measures.

10.19 The relationship between these measures and the procedural safeguards provided under the European Convention on Human Rights (ECHR) is unclear. The second paragraph of the introduction to the roadmap states that there is room at EU level to ensure full implementation and respect for ECHR standards "as well as, where appropriate, to expand existing standards or to make their application more uniform". The 12th paragraph, however, states that "any new legislative acts in this field should be coherent and consistent with the minimum standards" of the ECHR. We also note that the Minister states at paragraph 16 of his Explanatory Memorandum that the Government supports the "starting point" of using the ECHR as a "foundation for existing EU procedural rights … and considers it important to build on the existing ECHR rights." For reasons we also report in the subsequent chapter, it is in our view vital that the EU does not create an additional tier of procedural rights in criminal proceedings to those already provided by the ECHR. To do so would undermine, rather than enhance, the achievements of the ECHR and lead to considerable legal uncertainty. We hope that this is not the aim of the EU's policy on enhancing procedural safeguards, and ask the Government to allay further confusion by seeking with partners to ensure that the roadmap states as much, and to remove reference to expanding ECHR rights.

10.20 Given the above, we would also be grateful to know if the Council of Europe has been consulted on the roadmap.

10.21 The Minister states that the draft Council statement "could give the misleading impression that the roadmap is focussed on creating new rights or on legislation". It is our impression from reading the roadmap that it is indeed focussed exactly on that. We would be grateful for urgent clarification of this.

10.22 We ask the Minister to clarify whether measures B-F (measure A is considered in the subsequent chapter) are intended to apply only to cross-border criminal cases, or to domestic criminal cases as well as cross-border criminal cases.

10.23 We look forward to a response from the Government on the above points, and in the meantime keep the draft roadmap under scrutiny.





29   Analysis of the future of mutual recognition in criminal matters in the EU, report of 20 November 2008 by the Université Libre de Bruxelles Back

30   COM (2009) 262 (point 4.2.2) Back

31   We report on the draft Framework Decision on interpretation and translation rights in criminal proceedings in the subsequent chapter of this week's report. Back


 
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