European Commission rule of law report: Fair Trials response

The European Commission has published its first report into the rule of law across member states. Fair Trials welcomes the report. We believe that fair and effective criminal justice systems which respect our fundamental right to a fair trial are the cornerstones of the rule of law.

We have been concerned about the independence of the judiciary in Europe for a long time. This is not just a problem in countries like Hungary and Poland but also in other countries, including Malta, Bulgaria, Lithuania, Slovakia and more.

We also share the Commission’s concerns about the independence of prosecutors, especially as we are seeing increasing prosecutorial powers in Europe.  We have particular concerns around the issuing of European Arrest Warrants and whether prosecutors can guarantee effective judicial protection of procedural safeguards and fundamental rights

The Commission also recognises Covid-19 as a ‘stress test for rule of law’ – something that we also said in our report Beyond the Emergency of the COVID-19 pandemic. Member states have introduced sweeping measures, including the creation of  a wealth of COVID-related offences along with increased powers for law enforcement. These factors combined with reduced judicial oversight pose a real threat to rule of law across Europe. In its report, the Commission states that it will continue to monitor emergency measures that are still in place. Monitoring alone is not enough; the Commission must take action where Member States fail to return to a normal situation.

The report acknowledges that the pandemic gave a boost to digitalisation in criminal justice systems.  While using digital tools to enable access to justice is welcome, this again must not be normalised without a full analysis of the risks to justice. As we state in our Covid-19 report, remote hearings must remain an exception and cannot be treated as the equivalent to physical participation. Remote legal assistance should also be only used in exceptional circumstances and safeguards must be in place, including facilities that enable free and confidential exchanges.

Fair Trials also noted in a recent policy paper that ‘artificial intelligence’ (‘AI’), “ has been increasingly deployed in criminal justice systems across the world, playing an increasingly significant role in the administration of justice in criminal cases. This trend is often driven by perceptions about the reliability and impartiality of technological solutions, and pressures to make cost savings in policing and court services.” These systems have been shown to generate and reinforce discriminatory outcomes. We must ensure that the EU’s push for digitalisation is not at the expense of our fundamental rights.

Finally, the Rule of Law report notes that “effective justice systems rely on adequate human and financial resources”. We agree. Without them,  we risk losing public trust in criminal justice.  We look forward to working with the European Commission on this and the other issues raised.