Crime, EU – Baltic States, Legislation

In January 2011, the Commission celebrates its first year in office. According to the Commissioner Viviane Reding, this has been a year full of work towards consolidation in the European judicial area. For example, in 2010, the Commission accomplished a great deal of work in the field of justice and most specifically in the area of criminal law. The European Union was able to agree on the first ever criminal law Directive setting minimum standards on the right to interpretation and translation in criminal proceedings.

The EU also made tangible progress on the Directive on the right to information – the so-called ‘letter of rights’ – strengthening the rights of the accused concerning their rights and the charges against them.

These are strong, deft and much needed instruments that impact the lives of the EU citizens, she argued, which contribute to raising procedural rights standards and making those rights available throughout the European Union.

The Conference

The round-table conference on detention conditions in the European Union took place in Brussels, 25 January 2011. The European Commission vice-president, Viviane Reding, responsible for Justice, Fundamental Rights and Citizenship delivered a speech “Towards a Green Paper on detention in the European Union – strengthening mutual trust in the European judicial area” (See: Commission’s Speech/11/45).

Procedural rights

The Union is finally breaking the deadlock on procedural rights and laying the foundations for a European judicial area based on mutual trust between our judicial systems.

These accomplishments (made possible by the avenues opened by the Lisbon Treaty), she said should strengthen the EU intention in pursuing the implementation of our European procedural rights agenda.

With this in mind, the Commissioner will propose in 2011 another two Directives: a) a Directive on the right to access to a lawyer (in the summer), and b) a Directive on the right of arrested persons to communicate with their families and consular authorities (at the end of the year).  

In addition to these Directives, and in line with the European Council’s proposals in the Stockholm Programme, the Commission will look into the issue of detention and in particular pre-trial detention in the European Union. The EU aim is clear, the Commissioner underlined, i.e. to strengthen mutual knowledge about the EU legal system and reinforce mutual trust to ensure an effective application of the principle of mutual recognition.

Incured problems

Since the new EU post (Justice and Fundamental rights), the Commissioner has been given evidence by the MEPs, NGO’s, lawyers and members of the public about specific cases where citizens, and in particular non-residents, were served a European Arrest Warrant only to find themselves in long pre-trial detention procedures.

The Commissioner was also given specific evidence that in an increasing number of European Arrest Warrant cases, extradition is contested on the grounds that detention conditions in the issuing state are not perceived as conforming to European standards set by the European Convention for the Protection of Human Rights.

Mutual confidence

It seems obvious, that without mutual confidence in the area of detention, such existing instruments as the European Arrest Warrant, the European Evidence Warrant, the European Supervision Order or the Framework Decision on the transfer of prisoners will not work. Therefore, the EU is forced to improve mutual confidence and make the principle of mutual recognition effective.

The time a person can spend in detention waiting for his day in court varies widely among the EU-27. It is quite clear that excessively long periods of pre-trial detention are detrimental for the individual and are contrary to the EU essential values.

Therefore, the Commission is going to prepare in 2011 a Green Paper to explore possibilities in this area including alternatives to imprisonment.

In all existing judicial systems pre-trial detention is a measure of an exceptional nature; it is to be applied only when all other measures are regarded insufficient. In some European systems pre-trial detention is even set by a constitutional norm revealing a bias in favour of liberty in line with the presumption of innocence. This limits the circumstances under which pre-trial detention is authorised; it establishes specific criteria and procedures for its use. For example, it should only apply after the court determines that defendants pose a substantial risk of flight, or a threat to the safety of the community, to victims or witnesses. The status of detained defendants should, however, be monitored in all cases and their eligibility for release reviewed throughout the adjudication period. The Commission is of the opinion that cases of detained defendants should be given priority in scheduling for trial.

The implementation of the EU mutual recognition-based instruments should acknowledge these principles which are generally common to all legal systems in the Union. Besides, the Lisbon Treaty has an important impact in the field of criminal law; it makes mutual recognition of judicial decisions a cornerstone principle and it equips the Union with the tools to facilitate the implementation of such a principle. To that end, the European Union’s area of justice, freedom and security need to ensure that it benefits all citizens, including those suspected or accused of a crime, as well as victims of crime.

This is why the Commission has developed a clear agenda to strengthen procedural rights in Europe and is preparing a comprehensive package of measures on the rights, support and protection of victims, as victims are often the forgotten party in criminal proceedings.

Perspectives

Presently the EU is in the process of an important contribution towards a stronger area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the EU-27 member states.

The Commissioner expressed an opinion that the member states will give the EU a strong input to the perspective Green Paper. The member states’ insights and imput can add value to the existing EU efforts, to international instruments and monitoring mechanisms that deal with the issue of detention. The EU’s aim is to improve detention conditions as a means of enhancing mutual trust between the member states.