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Fair Trials in Europe

Across Europe, thousands of people being held in prison for months, and sometimes years, while waiting for a trial. This not only undermines their right to a fair trial and to liberty, but is contributing to overcrowding and inhuman and degrading conditions in Europe’s prisons. Pre-trial detention also reflects the discrimination that is embedded in the practices and functioning of Europe’s criminal justice systems.

These disparities risk and in some cases are already being reinforced by the increased use of artificial intelligence to make decisions about policing, arrests, release and sentencing. The increased use of criminal law and powers, most recently in the context of the Covid-19 health pandemic, is resulting in overcriminalisation and the prosecution of minor offences. Criminal justice systems cannot cope with the number of cases they have to process and countries are increasingly resorting to trial waivers systems and fast-track proceedings where people can be coerced to give up their right to a full trial.

How we work

We work with impacted communities, campaigners, NGOs, defence lawyers and policy makers to challenge the threats to the right to a fair trial across Europe. Our LEAP network of lawyers, campaigners and academics, are a crucial part of our work. We are also actively recruiting people who have been affected by the criminal justice system as experts who will work with our team.

As an international NGO, we bring in-depth expertise from a comparative and international perspective to provide innovative and practical solutions to long-standing problems. We also provide access to a brilliant and engaged network of leading lawyers, non-profits and academics from around the world.

Discrimination

Discrimination is seen at all stages of Europe’s criminal justice systems from the profiling and policing of marginalised communities through to decisions about probation and sentencing.  We are working with organisations and partners across Europe to end discrimination.

Read our letter urging the European Commission to drop its criminalisation approach to hatred and engage in more impactful responses.

Procedural rights

Procedural rights, such as the right to legal assistance and legal aid for people who cannot afford lawyer fees, can help people who are accused of crimes prepare an effective defence and safeguard them against abuses by authorities. Fair Trials’ campaigning contributed to the development of common criminal procedural rights as directly enforceable laws across EU Member States. We continue to work towards their implementation in practice and to protect these rights where they are threatened, in particular the right for arrested people to have access to a lawyer in police custody. We also work through our network to monitor gaps between law and practice, and report them to the European regional authorities and courts.

Criminal defence lawyers have enormous potential to drive the use of EU law to challenge fundamental rights violations. They operate on the front-line of the justice system, deciding which legal arguments to make and whether to apply EU law. In particular, the procedural rights of defendants are a relatively new area of EU law in which there is great potential for impact, but relatively little strategic litigation to date.

To support their work, Fair Trials has created toolkits and template legal arguments for lawyers on EU procedural rights. [LINK]

Pre-trial detention

Pre-trial detention is one of the harshest actions that a state can take against someone and can have devastating consequences for an individual and their family members. Detention can result in job loss, housing difficulties, and mental health problems. Placing a person in detention can also place them at risk of ill-treatment and violence.

As a result, human rights standards limit its use to a measure of last resort. In a recent briefing, we revealed that pre-trial detention increased across Europe in 2020 despite the serious health risks created by detaining people during the COVID-19 pandemic. Europe’s excessive rates of pre-trial detention are reinforcing discrimination and fuelling prison overcrowding. Excessive use of coercive measures such as detention also undermines the rule of law, which rightly requires law enforcement authorities to operate within the law, which requires detention only to be used as a measure of last resort.

We continue to advocate for the EU to monitor state practices and use of pre-trial detention, through the adoption of common standards on pre-trial detention. We want the European Commission to make Member States provide information about pre-trial detention as part of the Rule of Law monitoring report.

Read more about our pre-trial detention campaign.

Digitalisation

The European Commission is proposing to introduce and broaden the use of digital technology in justice systems. Fair Trials is monitoring these proposals for digitalisation, and has highlighted where they could reinforce discrimination in Europe’s criminal justice systems and impact on people’s fundamental rights in criminal proceedings.

Read our briefing on digitalisation.

We’re concerned that digital tools will water down procedural safeguards, in particular the right to legal assistance in police custody.

Artificial intelligence

Across Europe, law enforcement and other authorities are increasingly using artificial intelligence (AI) and automated decision-making (ADM) systems to make decisions at all stages of criminal justice – from profiling and arrest through to sentencing and probation. These systems often reinforce the discrimination that is embedded in Europe’s criminal justice systems. We are calling for the EU to ban the use of AI for profiling and to make sure that its proposed legislation includes safeguards to prevent discrimination and protect the presumption of innocence.

Read more about our campaign on AI, data and algorithms.

Trial waivers

European States are increasingly relying on trial waivers, which sometimes coerce people into pleading guilty in order to avoid a trial. Trial waiver systems are designed to process cases as quickly and cheaply as possible, regardless of whether or not someone is innocent or guilty.

Watch Fiqiri describe how he was coerced into giving up his right to a trial.

Cross border justice

Since 9/11, countries have made it quicker and easier to extradite people. In 2004, the European Arrest Warrant was created as a fast-track system for the arrest and extradition of a person to stand trial or serve a prison sentence in another Member State. Originally intended as an instrument of cooperation in the fight against serious cross-border crimes, the EAW has been disproportionately used for all types of offences – including in one case the theft of toothbrushes. We have outlined what needs to happen to bring the EAW system within the framework of the EU Charter of Fundamental Rights and rule of law.

Find out more about our work on extradition reform.

Contact

If you are interested in working with Fair Trials in Europe, please contact Laure Baudrihaye-Gerard.

If you would like to join our LEAP network, please email us.

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