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TOWARDS MINIMUM PROCEDURAL GUARANTEES FOR THE DEFENCE IN CRIMINAL PROCEEDINGS IN THE EU

Published online by Cambridge University Press:  28 November 2011

Laurens van Puyenbroeck  and
Gert Vermeulen
Laurens van Puyenbroeck
Affiliation:
Assistant at the department of Penal Law and Criminology at the University of Ghent; Attorney of law at the bar of Ghent.
Gert Vermeulen
Affiliation:
Professor of Criminal law, Head of the Department of Criminal Law and Criminology and Director of the Institute for International Research on Criminal Policy (IRCP) at Ghent University. Extraordinary Professor of Evidence Law at Maastricht University.
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Extract

A critical observer would not deny that the practice of European Union (‘EU’) policy making in the field of criminal law in the past decade since the implementation of the Tampere Programme has been mainly repressive and prosecution-oriented.1 The idea of introducing a set of common (minimum) rules, guaranteeing the rights of defence at a EU-wide level, has not been accorded the same attention as the introduction of instruments aimed at improving the effectiveness of crime-fighting. What does this mean for the future of EU criminal policy? Will the EU succeed in the coming years in developing an area where freedom, security and justice are truly balanced? According to several authors, to date the EU has evolved in the opposite direction. As one observer put it:

[I]f Procedural Criminal Law arises from the application of Constitutional Law, or indeed if it may be described as “a seismograph of the constitutional system of a State”, then as a consequence the Procedural Criminal Law of the European Union shows the extent of the Democratic Rule of Law, of the existence of a true “Rechtsstaat”, within an integrated Europe. This situation may be qualified as lamentable, as the main plank of the EU's criminal justice policy relates to the simplification and the speeding up of police and judicial cooperation—articles 30 and 31 of the Treaty of the EU—but without at the same time setting an acceptable standard for fundamental rights throughout a united Europe.2

Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 60 , Issue 4 , October 2011 , pp. 1017 - 1038
Copyright
Copyright © British Institute of International and Comparative Law 2011

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References

1 See, inter alia, M Anderson, ‘Law enforcement cooperation in the EU and fundamental rights protection’ in M Martin (ed), Crime, rights and the EU: the future of police and judicial cooperation (Justice 2008) 105–120; Cape, E, Hodgson, J, Prakken, T and Spronken, T (eds), Suspects in Europe, procedural rights at the investigative stage of the criminal process in the European Union (Intersentia 2007) 2–3Google Scholar.

2 K Ambos, ‘Mutual recognition versus procedural guarantees?’ in M de Hoyos Sancho (ed), Criminal proceedings in the European Union: essential safeguards (Lex Nova 2008) 25.

3 Charter of Fundamental Rights of the European Union, OJ C, 18 December 2000, 364/1.

4 Commission Proposal for a council framework Decision on certain procedural rights in criminal proceedings throughout the European Union COM(2004)328 final (28 April 2004).

5 Council of the European Union, Resolution of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings OJ C 295/1, 4 December 2009.

6 The Roadmap calls for action to be taken around 5 issues: Translation and Interpretation; Information on Rights and Information about the Charges; Legal Advice and Legal Aid; Communication with Relatives, Employers and Consular Activities; Special Safeguards for Suspected or Accused Persons who are Vulnerable; and a Green Paper on Pre-Trial Detention.

7 An open and secure Europe serving and protecting the citizen, OJ C, 4 May 2010, 115.

8 S Gless, ‘Mutual recognition, judicial inquiries, due process and fundamental rights’ in J Vervaele (ed), European evidence warrant: transnational judicial enquiries in the EU (Intersentia 2005) 124.

9 Preamble to the 2009 Council Resolution, endorsing the Roadmap on procedural rights.

10 European Council, Presidency Conclusions, 15–16 October 1999.

11 Council of the EU, Programme of measures to implement the principle of mutual recognition of judicial decisions in criminal matters, OJ C 12 of 15.1.2001.

12 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ L 190/1 of 18.7.2002; Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L 196 of 2.8.2003; Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, OJ L 76 of 22.3.2005; Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, OJ L 328 of 24.11.2006; Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings, OJ L 220 of 15.8.2008; Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, OJ L 327 of 5.12.2008; Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, OJ L 337, 16.12.2008; Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ L 350 of 31.12.2008. In addition the Commission produced a green paper on the principle of mutual recognition: Communication from the Commission to the Council and the European Parliament on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States COM(2005)195 (19 May 2005).

13 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 469.

14 K Ambos, l.c., 31.

15 C Brants ‘Procedural safeguards in the European Union: too little, too late?’ in J Vervaele (ed), oc, 106.

16 For further analysis, see G Vermeulen, ‘Mutual recognition, harmonisation and fundamental (procedural) rights protection’, in M Martin (ed), Crime, rights and the EU: the future of police and judicial cooperation (Justice 2008) 89–104.

17 Brants (n 13).

18 It should be noted in this respect that the Convention of 18 December 1997 on mutual assistance and cooperation between customs administrations, OJ C 24/1, 23.01.1998 (Napels II Convention)—which can be applied between judicial authorities in criminal investigations (art 3)—not only provides that ‘the requested authority shall agree to comply [with]a particular procedure in response to a request, provided that that procedure is not in conflict with the legal and administrative provisions of the requested Member State’ (art 9(6)) but also foresees a far-reaching framework for using information in a broad sense (‘… findings, certificates, information documents, certified true copies and other papers …’) acquired in the requested State as evidence in accordance with the national law of the requesting State (art 14).

19 This section draws on Spronken, T, Vermeulen, G, de Vocht, D and van Puyenbroeck, L, EU Procedural Rights in Criminal Proceedings (Maklu 2009) 116Google Scholar, in particular chapter 1.

20 TNBM Spronken and M Attinger, Procedural Rights in criminal proceedings: Existing Level of Safeguards in the European Union, funded and published by the European Commission 12 December 2005, available at <http://arno.unimaas.nl/show.cgi?fid=3891>.

21 Each of these rights is included in the Roadmap on procedural rights and was identified as a fundamental procedural right in the Council Resolution of November 2009 endorsing the Roadmap.

22 All Member States replied to the questionnaire except for Malta, so the conclusions are based on the information given by 26 Member States.

23 T Spronken, G Vermeulen, D de Vocht and L van Puyenbroeck, o.c., p. 22–24.

24 ECHR art 5(3) and art 6(3)(a).

25 ECHR art 5(3).

26 European Commission, Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, COM(2003)75 final, Brussels, 19 February 2003, section 8.1.

27 Ladent, Application No 11036/03, Judgment of 18 March 2008, 66; Ofner, Application No 524/59, Judgment of 19 December 1960.

28 Panovits, Application No 4268/04, Judgment of 11 December 2008 paras 68, 72; Talat Tunç, Application No 32432/96, Judgment of 27 March 2007 para 61; Padalov, Application No 54784/00, Judgment of 10 August 2006 paras 52–54.

29 Jespers, Application No 8403/78, Judgment of 14 December 1981.

30 Edwards, Application No 13071/87, Judgment of 16 December 1992 paras 35–38.

31 Jasper, Application No 27052/95, Judgment of 16 February 2000 para 43.

32 Rowe and Davis, Application No 28901/95, Judgment of 16 February 2000 para 58.

33 2003 Green Paper, s 4.1.

34 Art 14(3)(b) and (d) ICCPR is similar to art 6 ECHR, but adds the right to be informed of the right to legal assistance.

35 In art 11 of the Universal Declaration on Human Rights provides that everyone accused of having committed a crime, has the right to have all the guarantees necessary for his defence at his disposal.

36 Charter of Fundamental Rights of the European Union, art 47 (Right to an effective remedy and to a fair trial).

37 Art 8(2)(c)–(e) of the American Convention on Human Rights covers the same guarantees as art 6 ECHR, but adds the right ‘to communicate freely and privately with his counsel’.

38 The African Charter on Human Rights and Peoples Rights also guarantees in art 7(1)(c) the right to legal advice, including the right to be advised by a lawyer of his own choice.

39 In this respect the UN General Assembly Resolution on ‘Basic Principles on the Role of Lawyers’—initially adopted by the Eight Crime Congress, Havana, 7 September 1990, and then endorsed by UN General Assembly Resolution 45/121 of the General Assembly of the UN dated 14 December 1990—is also of great importance. The ground rules of the rights and duties of lawyers are prescribed in this resolution, emphasising the obligation of the government to guarantee the independence of the legal profession. Freedom of speech and association and assembly of lawyers should be respected and governments have to recognise that the communication between lawyers and clients is confidential. The government also has to guarantee that lawyers have access to the file and information at the earliest possible stage in the proceedings.[do these instruments really say ‘government’, or ‘State’?

40 2004 Proposal (n 3) s 32.

41 ibid s 55; also Salduz, Application No 36391/02, Judgment of 27 November 2008 Charter of Fundamental Rights of the European Union, OJ C, 18 December 2000, 364/1para 54.

42 Bogumil, Application No 35228/03, Judgment of 7 October 2008 para 48; Twalib, Judgment of 9 June 1998.

43 Yaremenko, Application No 32092/02, Judgment of 12 June 2008 para 81.

44 Panasenko, Application No 10418/03, Judgment of 22 July 2008 para 54; Shulepov, Application No 15435/03, Judgment of 26 June 2008 para 39.

45 Zagaria, Application No 58295/00, Judgment of 27 November 2007 para 36.

46 Timergaliyev, Application No 40631/02, Judgment of 11 November 2008 para 59; Padalov (n 25) paras 53–54.

47 Sannino, Application No 30961/03, Judgment of 27 April 2006 para 48.

48 Can, B 79, Judgment of 12 July 1984 para 48. ‘The court sees it as its task to ascertain whether the proceedings considered as a whole were fair’, which is standard case law of the ECtHR, see for example Kostovski, A 166, Judgment of 20 November 1989 para 39 and Edwards (n 27) para 34.

49 Gillow, A 109, Judgment of 24 November 1986; Croissant, A 237-B, Judgment of 25 September 1992; Lagerblom, Application No 26891/95, Judgment of 14 January 2003.

50 Can (n 45); Öcalan, Application No 63486/00, Judgment of 4 March 2003.

51 Goddi, A 76, Judgment of 9 April 1984; Öcalan (n 47).

52 Artico, A 37, Judgment of 13 May 1980.

53 Imbrioscia, A 275, Judgment of 24 November 1993 para 41: ‘However that may be, the applicant did not at the outset have the necessary legal support, but “a state cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal purposes”. (…) Owing to the legal professions’ independence, the conduct of the defence is essentially a matter between the defendant and his representative; under Art. 6 (paragraph 3c) the contracting States are required to intervene only if a failure by counsel to provide effective representation is manifest or sufficiently brought to their attention’.

54 Imbrioscia (n 50) para 41, Czekalla, Recueil/Reports 2002, Judgment of 10 October 2002 para 65; Bogumil (n 39).

55 Artico (n 49).

56 Alimena, A 195-D, Judgment of 19 February 1991.

57 T Spronken, G Vermeulen, D de Vocht and L van Puyenbroeck, o.c., p 30.

58 John Murray, Reports 1996-I, Judgment of 8 February 1996.

59 Commission Proposal for a council framework Decision on certain procedural rights in criminal proceedings throughout the European Union COM(2004)328 final (28 April 2004).

60 Can v Austria, Application No 9300/82, Judgment of 12 June 1984.

61 S v Switzerland, Application No 13965/88, Judgment of 29 November 1991.

62 Rybacki, Application No 52479/99, Judgment of 13 January 2009 paras 53–62.

63 Oferta Plus SRL, Application No 14385/04, Judgment of 19 December 2006 paras 145–156; Castravet, Application No 23393/05, Judgment of 13 March 2007 paras 59–60.

64 Lanz, Application No 24430/94, Judgment of 31 January 2002.

65 Magee, Application No 28135/95, Judgment of 6 June 2000 and Codron, Application No 35718/97, Judgment of 2 May 2000 para 60: ‘The fact that an accused person who is questioned under caution is assured access to legal advice, and in the applicants’ case the physical presence of a solicitor during police interview must be considered a particularly important safeguard for dispelling any compulsion to speak which may be inherent in the terms of the caution. For the court, particular caution is required when a domestic court seeks to attach weight to the fact that a person who is arrested in connection with a criminal offence and who has not been given access to a lawyer does not provide detailed responses when confronted with questions the answers to which may be incriminating.’

66 Averill, Application No 36408/97, Judgment of 6 June 2000.

67 Dougan, Application No 44738/98, Judgment of 14 December 1999: ‘Before the Court of Appeal they argued for the first time that the statements made by the applicant to the police should have been declared inadmissible on account of the absence of a solicitor during interview. However the merits of that argument must be tested against the circumstances of the case. Quite apart from the consideration that this line of defence should have been used at first instance, the Court considers that an applicant cannot rely on Art. 6 to claim the right to have a solicitor physically present during interview.’ See also Brennan, Application No 39846/98, Judgment of 16 October 2001.

68 Statute of the International Tribunal for the former Yugoslavia (ICTY), art 18 (para 3). Decision on the Defence Motion to Exclude Evidence from ICTY in Zdravko Mucic, 2 September 1997, Case No IT-96-21-T, Trial Chamber II.

69 2nd General report (CPT/Inf (92) 3), ss 36–38.

70 Salduz (n 38) para 54–55 and Panovits (n 25) paras 66 and 70–73. ‘The Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.’

71 Böke and Kandemir, Application Nos 71912/01, 26968/02 and 36397/03, Judgment of 10 March 2009; Aba, Application Nos 7638/02 and 24146/04, Judgment of 3 March 2009; Aslan and Demir, Application Nos 38940/02 and 5197/03, Judgment of 17 February 2009; Oztürk, Application No 16500/04, Judgment of 17 February 2009.

72 Shabelnik v Ukraine, Application No 16404/03, Judgment of 19 February 2009.

73 Pakelli, A 64, Judgment of 25 April 1983 para 34.

74 Quaranta, A 205, Judgment of 24 May 1991 para 35.

75 Benham, Reports 1996-III, Judgement of 10 June 1996.

76 Berlinski, Application Nos 27715/95 and 30209/96, Judgment of 20 June 2002.

77 2004 Proposal (n 3) s 60–61.

78 Green Paper, section 5.2.

79 This is also covered by art 14 para 3(a) and (f), ICCPR and arts 55 and 67 of the Rome Statute. The Rome Statute provides in art 55 the right to an interpreter and a translator for persons under investigation. Art 67 of the Rome Statute provides for interpretation and translation at trial.

80 Luedicke, Belkacem and Koç. A 29, Judgment of 28 November 1978.

81 2004 Proposal (n 3) s 63.

82 Kamasinksi, A 168, Judgment of 19 December 1989 paras 76–77; See also the 2004 proposal (n 3) s 67.

83 Green Paper, section 5.2.1 (a).

84 Cuscani, Application No 32771/96, Judgment of 24 September 2002; Hermi, Application No 18114/02, Judgment of 18 October 2006 para 69–71.

85 Kamasinksi (n 78); see also Lagerblom (n 46).

86 Green Paper, section 5.2.1 (c).

87 2004 Proposal (n 3) s 66.

88 Kamasinksi (n 78) para 81.

89 Timergaliyev, Application No 40631/02, Judgment of 14 October 2008 para 60.

90 Luedicke, Application No 6210/73, Judgment of 28 November 1978.

91 2004 Proposal (n 3) s 69 and 70.

92 2004 Proposal (n 3) s 36—In some cases even a prisoner's cellmate is used as an interpreter. See also Reflection Forum on Multilingualism and Interpreter Training March 2009, <http://ec.europa.eu./commission_barosso/orban/docs/FinalL_Reflection_Forum_Report_en.pdf>.

93 Green Paper, s 5.2.

94 The research was carried out by the Lessius Hogeschool with the aid of a European Commission ‘Grotius’ subsidy (Grotius II project 2001/GRP/015); see also Keijzer-Lambooy, H, Gasille, WJ (eds) Instruments for Lifting Language Barriers in Intercultural Legal Proceedings EU project JAI/2003/AGIS/048 (ITV Hogeschool voor Tolken en Vertalers 2005)Google Scholar.

95 C Morgan, ‘The Commission's draft proposal for a Framework Decision on certain procedural rights applying in proceedings in criminal matters throughout the European Union’ in H Keijzer-Lambooy, WJ Gasille (eds), Instruments for Lifting Language Barriers in Intercultural Legal Proceedings 27–28. See also the Green Paper, s 5.2.2 (a).

96 Green Paper, s 5.2.2 (c).

97 Green Paper, s 5.2.2 (d).

98 Green Paper, s 5.2.2 (e).

99 Declarations annexed to the final act of the intergovernmental conference which adopted the Treaty of Lisbon, signed on 13 December 2007 (OJ, 9 May 2008, C.115/337).

100 Communcation to the Council and the European Parliament of 26 July 2000 on Mutual Recognition of Final Decisions in Criminal Matters (COM(2000)495 final, 29 July 2000).

101 2004 Proposal (n 3).

102 Press release on the 2807th Session of the Council on the 12 and 13 of June 2007.

103 Council Framework Decision of 13 June 2002 on combating terrorism, OJ L 164/3, 22.6.2002.

104 Council Framework Decision of 19 July 2002 on combating trafficking in human beings, OJ L 203/1, 1.8.2002.

105 Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, OJ L 82/1, 22.03.2001.

106 OJ. 9 May 2008, C 115, 47. With the coming into force of the Lisbon Treaty in 2009, the former Treaty establishing the European Community has been renamed as Treaty on the Functioning of the European Union (TFEU). Together with the new Treaty on the European Union (TEU), the TFEU constitutes the new foundation of the EU.

107 Even on a diluted version, Justice Ministers could not find any agreement at the Justice and Home Affairs Council on 19 to 20 April 2007. The proposal was discussed again by the Council on 13 June 2007. The Council was unable to agree and there the matter has lain since.

108 GVV Tiggelen and L Surano, Institute for European Studies, Université Libre de Bruxelles ECLAN—European Criminal Law Academic Network, Analysis of the Future of Mutual Recognition in Criminal Matters in the European Union, 20 November 2008, EC DG JLS.

109 COM(2009)338.

110 See (n 70).

111 Impact Assessment accompanying the Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings (SEC(2011)686 final), Brussels, 8 June 2011, 5.

112 In 2009 the European Commission ordered a study on the laws of evidence in criminal proceedings throughout the European Union. This study concerned not only the international admissibility of evidence but also the future of cross-border evidence gathering between the Member States. The results of this study, carried out by the Institute for International Research on Criminal Policy of Ghent University, were published in 2010. See Vermeulen, G, De Bondt, W and Van Damme, Y, EU cross-border gathering and use of evidence in criminal matters: Towards mutual recognition of investigative measures and free movement of evidence? (Antwerpen-Apeldoorn-Portland 2010) 254Google Scholar.