Draft Framework Decision on the rights of the individual
in criminal proceedings involving international judicial co-operation

 

 

A JUSTICE PROPOSAL

 

 

January 2002

 

 

JUSTICE, 59 Carter Lane, London EC4V 5AQ

Tel: 020 7329 5100    Fax: 020 7329 5055    E-mail: admin@justice.org.uk

Draft Framework Decision on the rights of the individual in criminal proceedings involving international judicial co-operation

 

Background

 

Judicial co-operation in criminal matters has been steadily increasing within the EU over the past few years.  The conclusions of the EU summit at Tampere[1] expanded and intensified the agenda in this field with clearly defined short and long term objectives for the EU in improving judicial co-operation in the fight against crime.  The events of September 11^th in the USA have highlighted an international need for co-operation in combating serious crime, in particular terrorism, and have acted as a spur for a rapid acceleration in the EU agenda on police and judicial co-operation in criminal matters as outlined in the EU “road map” against terrorism[2]. 

 

New measures that will change the face of criminal justice in the EU have been agreed at speed in the wake of September 11^th.  The Framework Decision on the European arrest warrant and the surrender procedures between Member States[3], the Decision for the establishment of Eurojust[4], the agreement for the exchange of information between Europol and the USA[5] and the Framework Decision on combating terrorism[6] are just some of the measures that have already been agreed and that are likely to have a great impact on the practical workings of criminal justice and judicial co-operation in the Member States of the EU.  The general tenor of these changes is to increase the efficiency of investigations and prosecutions by increasing the powers of police and prosecutors while removing procedural hurdles in international co-operation.

 

The Article 29 – Data Protection Working Party in it’s opinion 10/2001 on the need for a balanced approach in the fight against terrorism[7] concludes:

“Measures against terrorism should not and need not reduce standards of protection of fundamental rights which characterise democratic societies.  A key element of the fight against terrorism involves ensuring that we preserve the fundamental values which are the basis of our democratic societies and the very values that those advocating the use of violence seek to destroy.”

 

The EU Charter of Fundamental Rights, and in particular Chapter VI of the Charter which relates to Justice, has gone some way in reinforcing the respect for human rights in the EU but its non-binding nature limits its effect.  Provisions in the ECHR and the Rome Statute of the ICC also reflect the EU’s commitment to the principle of protecting the individual’s rights in criminal proceedings. The Commission is currently looking at minimum standards in criminal procedure in general within the laws of the Member States, including such aspects as the provision of legal aid, disclosure and bail and this is to be welcomed.  It is to be hoped that the establishment of minimum standards across the EU will be an opportunity to raise standards generally.

 

JUSTICE believes, however, that there is a real need for formal and binding codification of rights in the context of international judicial co-operation in criminal matters.  The complexities of law and procedure involved in cross-border investigations and prosecutions require specific and detailed procedural safeguards to be in place.  To this end JUSTICE proposes a “draft Framework Decision on the rights of the individual in criminal proceedings involving international judicial co-operation” in order to formalise and harmonise the procedural and human rights safeguards for the individual as a balance to the harmonisation of procedures and powers for police and prosecutors.   The added complications and potential impact on the individual of criminal proceedings involving two or more jurisdictions mean that, in the interests of justice and in accordance with the equality of arms principle enshrined in Article 6 of the ECHR, it is crucial for Member States to apply a high level of procedural safeguards in such cases.

 

The Safeguards

 

With a basis on Chapter VI of the EU Charter on Fundamental Rights and provisions relating to the rights of the defence in the Rome Statue of the ICC and consideration being given in particular to Articles 5, 6 and 8 of the ECHR, the procedural safeguards set out in such a Framework Decision should address the following key issues:

 

1.      Legal Representation:

·         Of choice for the Defendant in both the requesting and requested States

·         For the Defendant / suspect, unless waived by them, at every effective judicial decision taken in relation to the proceedings - including the ability to cross-examine witnesses giving evidence by video or telephone link up and formal representation

·         For the Defendant immediately on or as soon as is practicable following arrest including the ability to contact legal representatives in the requesting State confidentially by telephone and a prohibition on questioning in the absence of a legal representative.

·         For witnesses giving evidence by video-conference or tele-conference – in particular on the laws relating to perjury, contempt of court and any privilege against self-incrimination in the requested state and the effects of their testimony in the proceedings in the requesting state.

·         Provision for legal aid in both the requesting and requested States given that the complexity of cases involving international judicial co-operation means that legal representation will invariably be required in the interests of justice.

 

2.      Interpreters:

·         For the Defendant in a country where the official language is not his/her mother tongue for consultation with legal representatives, during questioning and for court proceedings unless the Defendant waives that right

·         For the Courts in either the requesting or the requested States where necessary

·         For witnesses where the witness feels that it is necessary

 

3.      Right to Bail:

·         “Eurobail” system standardising bail criteria across Member States to be considered by the Courts in the requested State and enforced through courts in the requesting State (“through bail”)

·         To be considered by the Courts in the requesting State following return of a Defendant and to be reviewed at regular intervals if refused

 

4.      Remand in Custody:

·         The possibility should be available for a Defendant who is not granted bail but who is subject to lengthy delays on remand in custody to be held in custody in the requested State where this would facilitate the maintenance of contact with family.

·         European Habeas Corpus or a system of Europe wide statutory time limits relating to the conduct of proceedings

 

5.      Judicial Accountability:

·         Clear guidelines as to where the possibility for judicial review of and appeal from a decision lies.

·         Clear delineation of the competences of the ECJ and the EctHR in relation to mutual assistance in criminal proceedings.

·         The possibility for Judges to play a role in courts in other jurisdictions where decisions are taken on criminal proceedings in which they are involved.

 

6.      Timely Written Information:

·         Provided to the Defendant in the language(s) of the requested and the requesting State as well as the language of the individual concerned or, if this is not possible within the time frame, in the working languages of the EU.

Ø      Outlining the offences, circumstances and possible penalties concerned.

Ø      Explaining the individual’s rights including rights of recourse to judicial review and/or appeal of any decisions made.

Ø      Indicating the legislative source of the powers relating to international mutual assistance which are being relied upon.

·         Provided to witnesses on the laws relating to perjury in the requested State in a language that he/she can understand.

·         Access to the dossier held in the Requesting State to be available to the Defendant either directly or through his/her legal representative to the same level as it would have been if he/she were present in the Requesting State.

 

7.      Interpretation and Proportionality

·         The definition of a crime should be strict and not be extended by analogy.

·         In case of ambiguity interpretation should be made in favour of the defendant.

·         Proportionality should be taken into account when decisions are taken within the context of EU mutual assistance.

·         Nullum crimen sine lege – a person shall not be criminally responsible for conduct which did not constitute a crime within the jurisdiction of the Requesting State at the time it took place.

·         Standardisation of the principle of ne bis in idem on a European level

 

8.   Defence right to Mutual Assistance

·         Procedural guidelines to be drawn up regarding the rights of the Defence to use mutual assistance mechanisms in preparing the Defence case, including the use of such mechanisms prior to charge.

 

9.      Evidence and Burden of Proof

·         Standard definition of burden of proof.

·         Standard rules regarding admissibility and weight of evidence.

·         Prohibition on the use of improperly obtained evidence regardless of where the impropriety occurs.

 

9.   Protection from arbitrary arrest and detention:

·         Adequate data-protection and monitoring of alerts on the SIS or other international databases to ensure that information is up to date

·         Formal bar on the use of private prosecutions in international co-operation in criminal matters 

·         EU wide rules on when individuals can be detained, for how long, in what conditions and the requirement for a regular review of detention.

 

10.  Protection of vulnerable individuals

·         Mutual assistance should be carried out with particular concern for the impact of measures taken on vulnerable individuals (such as children or those suffering from a mental disease or defect).

 

23^rd January 2002

JUSTICE,

59 Carter Lane,

London,

EC4V 5AQ