Reform or inertia: does the EU support the right to a fair trial?

This post is part of a series examining the EU’s Justice and Home Affairs policy. The first in the series highlighted concerns about the European Arrest Warrant, in particular its inadequate protection of the fundamental rights of suspects. In this second post, we use the stop-start story of EU legislation on the procedural rights of accused persons to reveal the complicated political realities of getting new policies through Brussels’s legislative procedures.

Imagine that you have been arrested in a foreign country. You are not clear what you are accused of. It could be a case of mistaken identity. Perhaps some action you have taken has been misunderstood, or you have committed a crime without knowing that that was what you were doing. It could be that your lack of understanding of the local language is making it hard for you to explain yourself or understand what is expected of you. All these questions demonstrate that the right to a fair trial and a legal defence is something that must in some cases be backed by practical support.

The ‘rules of engagement’ between state and individual have been defined many times over the years. The long-standing English law of habeas corpus concerns the right of an imprisoned person to have the reasons for their imprisonment properly examined in a court of law; more elaboration on the subject can be found in the European Convention on Human Rights (ECHR) and the EU’s Charter of Fundamental Rights (ECFR). Article 6 of the former is more expansive, spelling out guidelines on open, public hearings, stating the presumption of innocence, and then enumerating five minimum procedural rights for defendants:

• the right to be informed quickly, in detail, and in a language the accused person understands, of the nature and content of the accusation;
• the right to time and facilities to prepare a defence;
• the right for accused people to represent themselves, or material assistance to engage the services of a lawyer if not;
• the right to call and examine witnesses and to cross-examine prosecution witnesses, and
• the right to the services of an interpreter if the accused person does not understand the language in which the proceedings are held.

Article 48 of the ECFR contains a vaguer statement of the same basic principles:

1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.
2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.

The vagueness in this definition has been problematic. The principle of mutual recognition, on which the whole of EU-level justice policy rests, consists in the idea that countries will render each other judicial and investigatory assistance based on the mutual trust that they are all democratic and all committed to the same ideals. In practice, though, this trust has been compromised by the varying extents to which different states uphold the provisions of the ECHR and the ECFR on defence rights. Some disturbing cases call into question whether the spirit of the ECHR is being upheld, even if its strict letter is obeyed. Yet because the laws that govern cooperation against crime within the EU simply assumed that mutual recognition existed, and left precious little room for discretion based on the facts of a particular case, we are now in the dangerous position where the investigating authorities in one country may find themselves with no option but to cooperate with requests for assistance, even where they doubt the merits of the case. This kind of poor law-making can only erode the reputation of the EU, as visible cases of injustice appear not to be capable of resolution within the framework created by the law as it currently stands.

The consequent need to spell out the minimum rights to be guaranteed under a system of mutual recognition was first identified by the European Commission in April 2004. Under this system, suspects in the EU would have had the right to:

• receive free legal advice;
• free interpretation and translation services;
• access special help and support if they struggle to understand the proceedings (for example if they are a child, or have learning difficulties);
• communicate with family and friends, and
• receive a written letter outlining their rights in a language they understand.

This proposal, however, foundered in the European Council, on the objections of the UK, Ireland, the Czech Republic, Malta and Slovakia, all of whom argued that defendants’ rights were adequately protected in the ECHR. And before the Treaty of Lisbon smoothed the procedures of the European Council, it was possible for one country’s objections, if not overcome, to result in an effective veto. So there was no progress for procedural rights until after Lisbon removed individual states’ vetos. But in 2009, the procedural rights agenda returned to the fore, with nearly the same provisions as before, only this time scheduled to be phased in one at a time, rather than as a single batch. The first of these measures, guaranteeing the right to translation and interpretation, has been passed, and the others are on their way, much to the chagrin of some Member States.

The position the EU finds itself in is (as usual) exquisitely complex. The pace at which it has tried to make laws against terrorism and organised crime has left it with several measures that fulfil their intended purpose, but discredit themselves by their unintended side-effects. MEPs and civil society groups have long criticised them, and have been in the vanguard of recent calls for reform. Yet some Member States, through the European Council, have resisted making potentially costly reforms. Instead they have been able to hide behind the rhetoric of mutual recognition, as if endlessly repeating to themselves the mantra: ‘my fellow states respect fundamental rights’.

The efforts of campaigning organisations have meant that this is no longer perceived to be the case, and a newly confident European Parliament is now pushing hard for reforms to existing measures of collaboration in justice policy. What matters here is that the EU is finally grasping the nettle of defining those minimum values of European justice, rather than simply trusting that they can be deduced by magic. The Road Map on Procedural Rights that is now in the process of becoming law is long overdue, but should be applauded as a step in the right direction. The next post will look at its sixth proposed measure, the most significant addition to it from its 2004 version: the Commission Green Paper on Detention.

Tags: Council of the European Union, Criminal Justice, EU justice policy, European Commission, European Parliament (EP), Fair trials