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Legal Training

Fair Trials provides in-person and online training to hundreds of lawyers each year.

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Unit 1: Aims and Objectives

Introduction

In the past decade, EU Member states have been cooperating closely to tackle cross-border crime. Borrowing the single market concept of ‘mutual recognition’, the idea of a judicial decision made in one Member State being automatically respected and applied by judicial authorities in other Member States quickly found favour, with Member States rushing to agree the flagship mutual recognition instrument – the European Arrest Warrant (EAW) – in the aftermath of the 9/11 attacks.

Less attention however, was given to the question of whether there was a sound basis for mutual trust between Member States, necessary for the functioning of mutual recognition. This question should have been answered prior to the development of new instruments of judicial cooperation. The assumption was that the commitments assumed by all Member States under the European Convention on Human Rights (ECHR) were sufficient to create trust in each other’s systems and no further action, legislative or otherwise, was required. However, the EAW and other mutual recognition instruments have helped to expose the varying levels of fundamental rights protections between Member States, and have shown that the assumed trust in each other’s legal systems may have been misplaced.

In an area of free movement of people and few border controls between 28 countries, the need for effective judicial co-operation is obvious, but Member States must also ensure that fundamental rights are not being ignored in favour of greater cooperation.

In this training module, Fair Trials aims to help practitioners to improve their understanding of mutual recognition instruments, with a specific focus on the EAW Framework Decision, and to provide guidance on ways in which they might be able to raise human rights arguments in their day-to-day work on cross border cases.

Aims and Objectives

The main aims and objectives of this training module are as follows:

  • To help practitioners to understand the concept of mutual recognition, and the key features of mutual recognition instruments;
  • To provide an introduction to the key provisions of the EAW Framework Decision;
  • To increase awareness of the main challenges to fundamental rights protection presented by the EAW, as illustrated by individual cases of injustice, and to inform practitioners about the various ways in which Member States as well as the EU institutions are tackling these problems;
  • To provide guidance on human rights-based challenges to the EAW, with reference to the jurisprudence of the European Court of Human Rights, the Court of Justice of the European Union, and domestic case-law of Member States;
  • To provide advice to help practitioners find practical solutions to help their clients who are subject to an EAW; and
  • To provide an introduction to the European Supervision Order (ESO), a mechanism that aims to help non-resident EU national defendants who have difficulty getting released from pre-trial detention.

 

Unit 2: Key Terms

Commission refers to the European Commission, the executive body of the EU, whose responsibilities include proposing legislation.

Council, in this training module, refers to the Council of the European Union (as opposed to the Council of Europe, the international organisation consisting of 47 member states, and is distinct from the EU), the institution of the European Union represented by ministers from each Member State, whose primary purpose is to function as a legislative body of the EU.

Council Framework Decision 2009/299/JHA refers to Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decision rendered in the absence of the person concerned at trial. This framework decision amended provisions in the EAW Framework Decision relating to refusals to execute an EAW on the basis that it was based on a trial in absentia.

EAW Framework Decision means Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA.

ESO Framework Decision refers to Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.

European Arrest Warrant (EAW) is a judicial decision issued by a Member State with a view to the arrest and ‘surrender’ by another Member State of a requested person. The EAW Framework Decision establishes a fast-track system for surrendering people from one Member State to another.

European Supervision Order (ESO) means a decision by a competent authority of one EU Member State imposing supervision measures on a defendant as an alternative to pre-trial detention, which is forwarded to another Member State for it to supervise on its territory.

Executing State, in the context of the EAW Framework Decision, refers to the Member State being requested to execute the EAW (in other words, the country form which extradition is being sought).

Issuing State, in the context of the EAW Framework Decision, refers to the Member State issuing the EAW (in other words, the country making the extradition request).

Member States refer to the member states of the European Union.

Mutual recognition refers to a process by which a judicial decision made in one Member State is automatically recognised and, where appropriate, enforced by the judicial authorities of other Member States, with few formalities or exceptions.

Pre-trial detention means the detention of a person on reasonable suspicion that they have committed an offence, for example, for the purpose of reducing the risk of re-offending, interference with investigations, or flight, prior to the determination as to that person’s guilt or innocence by a tribunal.

Requested person refers to the individual subject to an EAW or a different type of request for extradition.

Module 2 – Introduction to Mutual Recognition

What is mutual recognition?

In the field of EU criminal justice, mutual recognition of judicial decisions refers to a process by which a judicial decision made in one Member State is automatically recognised and where appropriate, enforced by the judicial authorities of other Member States, with few formalities or exceptions.

Mutual Recognition is a concept that forms a key cornerstone of the EU’s criminal justice policy, and it is borrowed from the ‘single market’ principles central to EU laws and policies. Mutual recognition relies on ‘mutual trust’ – the idea that Member States should be able to trust and have faith in each other’s legal systems.

What is the difference between mutual recognition instruments and other mechanisms for judicial cooperation?

The EU’s mutual recognition instruments can be distinguished from other agreements that enable international judicial cooperation (such as those facilitated by Council of Europe, UN-sponsored or bilateral agreements), in that they do not rely on the discretion of states to act on requests relating to judicial cooperation.

For example, whereas states can exercise discretion in complying with requests made under ‘traditional’ judicial cooperation or mutual legal assistance mechanisms, mutual recognition instruments such as the European Arrest Warrant remove this barrier, instead creating a legal obligation on Member States to recognise, and where appropriate, enforce decisions, subject only to minimal formalities and few exceptions.

A key distinguishing feature of mutual recognition instruments that facilitate judicial cooperation is also that they enable judicial authorities of member states to communicate with one another directly, without the involvement of executive bodies.

What is the basis of mutual trust?

As explained above, according to the principle of mutual trust, Member States should have full confidence in each other’s legal systems, as is necessary for the effective operation of mutual recognition instruments. In the context of criminal justice, mutual trust is based on the presupposition that all Member States have criminal justice systems whose standards reflect the EU’s commitment to protect fundamental freedoms, democracy and fundamental rights.

In particular, the fact that all member states are parties to the European Convention on Human Rights reinforces the assumption that all Member States protect fundamental rights to a sufficiently high standard. As the EU institutions presumed the underlying conditions for mutual trust to exist, the first mutual recognition instruments of the EU were adopted without further steps being taken to ensure that adequate human rights protections existed in all Member States.

What are perceived to be some of the key benefits of mutual recognition?

Mutual recognition is seen as a way of ensuring efficient and effective judicial cooperation between Member States whilst at the same time overcoming the challenges created by the diversity of legal systems across the EU.

Free movement of people is one of the fundamental freedoms that form a cornerstone of the EU, but the porosity of its internal borders has created increased opportunities for transnational crime. ‘Traditional’ judicial cooperation measures have been deemed to be too slow and ill-suited to tackle this problem, and there was a need to establish a way of facilitating greater judicial cooperation between member states, whilst respecting the diversity of their legal systems and safeguarding their sovereignty on criminal justice matters.

At the Tampere European Council in 1999, mutual recognition was officially endorsed as a ‘cornerstone of judicial co-operation in both civil and criminal matters’, and it also asked the Commission to adopt a programme of measures implementing the principle of mutual recognition. Subsequently Article 82 of the Lisbon Treaty cemented mutual recognition as the basis for judicial co-operation in criminal matters.

What are perceived to be the flaws to mutual recognition?

Although mutual trust forms the basis of mutual recognition instruments, the assumption that all member states’ legal systems provide comparably high standards of human rights protections has been found to be misplaced.

Standards of justice vary greatly from one country to another, even within the EU, and the fact that all member states are signatories to the European Convention on Human Rights is no guarantee that they comply with the standards enshrined in the ECHR. For example, between 2009 and 2013, the European Court of Human Rights found over 600 violations of the right to liberty and the right to a fair trial in criminal cases by Member States.

However, until 2009, this problem was largely been ignored in the push for ever greater mutual recognition and cross-border cooperation. Defence rights were side-lined, not strengthened, in the name of greater cooperation. The misguided mutual trust in member states’ legal systems and the flaws to mutual recognition are exemplified most clearly in the cases of injustice that can be attributed to the operation of the European Arrest Warrant (‘EAW’), the flagship mutual recognition measure that was rushed through in the aftermath of the 9/11 terror attacks in 2001.

More recently, the Council acknowledged that the varying standards of criminal justice systems in member states interferes with and undermines the effectiveness of mutual recognition instruments, and in 2009 adopted a legislative programme to strengthen the procedural rights of suspected and accused persons in criminal proceedings. This has resulted in a number of new laws which seek to improve safeguards of certain aspects of the right to fair trial, including the right to interpretation and translation, the right to information and the right to a lawyer.

What mutual recognition instruments are there?

The EAW is the first and the best-known example of an EU mutual recognition instrument, but others have been adopted and implemented since. These include the following:

  • The Framework Decision on Freezing Orders[1] and the Framework Decision on Confiscation Orders[2] enable a judicial authority of one Member State to send orders to freeze or confiscate property to another country, where they are recognised and enforced. The Framework Decision on Freezing Orders was adopted in July 2003, and the deadline for transposition was August 2003. The Framework Decision on Confiscation Orders was adopted in October 2006, and the deadline for transposition was November 2008.
  • The Probation Framework Decision[3] provides for probation decisions, other alternative sanctions and post-sentencing supervision measures imposed by one Member State to be recognised by another. The Probation Framework Decision was adopted in November 2008, and the deadline for transposition was December 2011.
  • The Prisoner Transfer Framework Decision[4] facilitates the transfer of sentenced prisoners between Member States by providing for the recognition and enforcement of custodial sentences. The Framework Decision also allows for the transfer of prison sentences from one Member State to another (as opposed to the physical transfer of the prisoner), which means that individuals sentenced to serve a prison sentence in a Member State where they are not resident can apply to serve it instead in their home country. The Prisoner Transfer Framework Decision was adopted in November 2008, and the deadline for transposition was December 2011.
  • The European Supervision Order (‘ESO’) Framework Decision[5] provides for decisions for pre-trial supervision measures (including ‘bail conditions’) imposed by one Member State to be recognised and overseen by the authorities of another Member State. The ESO intends to reduce pre-trial detention for non-resident EU nationals, by making it easier for them to return to their home country until their trial is ready to go ahead. The ESO Framework Decision was adopted in October 2009, and the deadline for transposition was December 2012.
  • The Directive on the European Investigation Order (‘EIO’)[6] enables Member States to carry out investigative measures on behalf of another Member State for the purpose of obtaining evidence. This Directive was adopted in April 2014, and the deadline for its transposition is May 2017.

 

[1] Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence

[2] Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders

[3] 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

[4] Council Framework Decision of 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

[5] Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention

[6] Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters

Module 3 - The European Arrest Warrant – Overview of Key Provisions

The Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States (the EAW Framework Decision) was adopted in 2002, and entered into force on 1 January 2004. The legislation aimed to facilitate the surrender of people accused or convicted of criminal offences between EU Member States to improve cooperation in fighting serious cross- border crime, such as terrorism.

Key Provisions

What kind of measure is the EAW Framework Decision?

The EAW Framework Decision is a ‘mutual recognition’ instrument. This means that when the state where an offence took place issues a European Arrest Warrant (EAW), the state where the person who is alleged to have committed it, or is wanted to serve a custodial sentence in relation to it, is located is required to execute it. It replaced all previous extradition treaties between Member States.

What is a European Arrest Warrant?

Article 1(1) of the EAW Framework Decision states that ‘the European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person’. The EAW Framework Decision establishes a fast-track system for surrendering people from one Member State to another.

Which authorities can issue/execute EAWs?

Under Article 6(3) of the EAW Framework Decision, Member States must designate the judicial authority competent to issue and/or execute EAWs. This is done by notifying the General Secretariat of the Council of the EU.

Under Article 7(1) each Member State may also designate a central authority to be responsible for ‘the administrative transmission and reception of EAWs as well as for all other official correspondence ’. This is also done by notifying the General Secretariat. Recital 9 makes it clear that the role of the central authority ‘must be limited to practical and administrative assistance’.

When can an EAW be issued?

Under Article 1(1) of the EAW Framework Decision an EAW can only be issued ‘for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order’. Under Article 2(1), an EAW can only be issued for the purpose of conducting a criminal prosecution if the offence is punishable by a custodial sentence or detention order of a maximum period of at least twelve months under the law of the issuing Member State. An EAW can only be issued for the purpose of executing a custodial sentence that has already has been passed if the sentence is for a minimum of least four months.

What is the process for issuing an EAW?

A form of EAW is set out in the Annex to the Framework Decision. Article 8 lists the information that must be included in an EAW, which is all included on the standard form and includes details such as the identity and nationality of the requested person, details about the issuing authority, the nature and legal classification of the offence, a description of the circumstances in which the offence was committed and, if there has been a final judgment, the penalty imposed.

Once the location of the requested person is known, the issuing judicial authority will transmit the EAW to the executing judicial authority. This may follow, or be accompanied by, an alert via the Schengen Information System or an INTERPOL notice.

What happens once an EAW has been issued?

The executing Member State will then arrest the requested person. Article 11 provides that upon arrest, the requested person must be informed of the EAW and its contents and will be given the option of consenting to surrender. The requested person must be granted the right to access a lawyer and an interpreter in accordance with the law of the executing Member State, and Member States must have measures in place to ensure that any consent to surrender is done voluntarily and in full awareness of the consequences (Article 13(2)).

If the requested person does not consent to surrender then he/she is entitled to be heard by the executing judicial authority.

What is the process for the executing authority to decide whether to surrender the requesting person?

The executing authority must decide within time limits prescribed by the EAW Framework Decision whether to surrender a requested person. If the executing authority is not satisfied that the EAW includes the information specified in Article 8, then the executing Member State may request the necessary additional information (Article 15(2)).

If consent to surrender is given, a final decision on the execution must be taken within ten days of that consent (Article 17(2)).

If the requested person does not consent to surrender, then s/he is entitled to be heard by the executing judicial authority. A final decision on execution must be made no later than sixty days following the date of arrest. The hearing itself is held in accordance with the domestic law of the executing Member State (Articles 17(3) and 19).

If the executing judicial authority decides to surrender the requested person, this must take place no later than ten days following the final decision.

Whatever the final decision, the executing judicial authority must notify the issuing judicial authority of it immediately, and reasons must be given for any refusal to execute an EAW (Article 17(6)).

Can the time limits be extended?

All time limits may be extended in exceptional circumstances, generally due to procedural problems in the executing state (Articles 17(4), 23(3)).

Article 23(4) provides that surrender may exceptionally be temporarily postponed for ‘serious humanitarian reasons’. One example is where there are ‘substantial grounds’ for believing that surrender would ‘manifestly endanger the requested person’s life or health’. The EAW must still be executed as soon as the relevant grounds (for example serious ill-health) have ceased to exist.

 Will someone remain in detention whilst awaiting extradition or the outcome of an extradition hearing?

The competent judicial authority in the executing state must decide whether that person should remain in custody pending his/her EAW hearing. This decision is made according to the domestic law of the executing Member State on pre-trial detention, provided that it takes all measures deemed necessary to prevent the person absconding (Article 12).

 

Are there any instances when a Member State must refuse to execute a warrant?

Article 3 lists the three circumstances in which it is mandatory for the executing judicial authority to refuse to execute a warrant. These are:

  • Where the offence is covered by an amnesty in the executing Member State (Article 3(1));
  • Where the requested person has already been finally acquitted or convicted by a Member State in respect of the same acts that make up the offence for which surrender is sought, provided that if a sentence was issued for the acts it has been served, is currently being served or many no longer be executed under the law of the sentencing Member State (the ne bis in idemrule) (Article 3(2)); and
  • If the requested person may not, owing to his age, be held criminally responsible under the law of the executing Member State (Article 3(3)).

Are there any instances when a Member State may choose whether or not to execute a warrant?

Article 4 of the EAW Framework Decision lists seven circumstances in which the executing judicial authority has discretion whether or not to execute the warrant. These include:

  • If the EAW relates to acts which would not constitute a criminal offence in the executing Member State (except for 32 categories of offence listed in Article 2(2) such as terrorism, murder, certain drugs offences and rape) (Article 4(1));
  • If the requested person is already being prosecuted for the offence in the executing Member State (Article 4(2));
  • Where authorities of the executing Member State have decided not to prosecute for the offence on which the EAW is based or have halted proceedings, or a final judgement has already been passed in respect of the relevant acts which prevent further proceedings (Article 4(3));
  • Where criminal prosecution or punishment is statute-barred according to the law of the executing Member State and the acts covered by the EAW are within its jurisdiction (Article 4(4));
  • Where the execution of the EAW would contravene the ne bis idem rule because the requested person has been finally judged by a third state (i.e. one not party to the EAW Framework Decision) (Article 4(5));
  • Where the EAW has been issued for the purposes of execution of a custodial sentence, if the requested person is staying in, or is a national or resident of the executing Member State, then the EAW may be refused provided that State undertakes to execute the sentence itself (Article 4(6)); and
  • Where the EAW relates to offences which were committed wholly or partly in the executing Member State, or were committed outside the territory of the issuing Member State (Article 4(7)).

Are there any further bars to extradition?

Under Article 5 of the EAW Framework Decision, individual Member States may decide, by passing domestic legislation, that surrender will be refused unless the issuing Member State gives one or all of the following guarantees:

  • If the offence forming the basis of the EAW is punishable by a life sentence or life-time detention order, surrender may be subject to the issuing Member State having certain provisions for a review of the sentence (Article 5(2)); and
  • If the requested person is a national or resident of the executing Member State, surrender may be subject to the issuing Member State returning the requested person post-trial to serve his/her sentence.

Are there any human rights grounds on which a Member State can refuse to execute an EAW?

All Member States are signatories to the European Convention on Human Rights (ECHR) and are therefore bound by its terms.

Recital 13 of the EAW Framework Decision states that:

No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhumane or degrading treatment or punishment.’

Article 1(3) makes it clear that the Framework Decision does not modify the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

However, it is important to note that there is no explicit right to refuse to execute an EAW on human rights grounds in the main body of the EAW Framework Decision. Some countries, such as the UK, have written a human rights refusal ground into national legislation. If your jurisdiction does not explicitly provide for this, then there may still be human rights arguments that can be put forward in EAW cases based on the provisions above and the rights enshrined in the ECHR.

Article 3 (No one shall be subjected to torture or to inhuman or degrading treatment or punishment)

Every Member State has obligations under the ECHR which should prevent them from extraditing someone who can show that they are at real risk of being subjected to ill-treatment in the issuing state. It is established by case law from both the European Court of Human Rights and the Court of Justice of the EU that an assumption that all EU Member States fulfil their obligations under the ECHR is not easily displaced, but can be rebutted by clear and cogent evidence (see for example MSS v Belgium and Greece[1] and NS and others v SSHD[2]).

Article 8 (Right to respect for private and family life)

Under Article 8 of the ECHR, everyone has the right to respect for his private and family life, his home and his correspondence. Public authorities can only interfere with this right in accordance with the law and as necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 concerns can arise in extradition cases where the requested person has an established family life in the executing state, especially where children are involved. It may be that extradition serves a legitimate aim within Article 8(2), the question that you should be asking is whether the extradition is proportionate to that legitimate aim.

Can Member States refuse to execute an EAW on the basis that the warrant is based on a conviction in absentia?

The EAW Framework Decision originally contained a provision (Article 5(1)) that allowed Member States to refuse surrender in certain situations where the requested person has been tried in absentia, unless assurances were provided about the availability of a re-trial.

Article 5(1) was replaced with Article 4a by Article 2 of Council Framework Decision 2009/299/JHA, for which the transposition deadline was 28 March 2011. Under this new provision, the executing state may refuse to execute an EAW based on a conviction in absentia unless, in accordance with the laws of the issuing state:

  • The requested person was either summoned in person and informed of the time and place of the trial, or was otherwise informed of the trial in a way that made it clear that s/he was aware of the trial, and s/he was informed that decision would be handed down in his/her absence if s/he failed to appear; or
  • The requested person, despite being physically absent at trial, was represented by a legal representative who was either appointed by the person concerned or by the state; or
  • After being served with the decision, and being informed of the right to a retrial or an appeal (in which the factual merits of the case can be re-examined), the requested person either expressly stated that s/he does not contest the decision, or did not request the retrial or appeal within the relevant time frame; or
  • Despite not having been served with the decision personally, the requested person will be served with it without delay following surrender, and s/he will be informed of a right to a retrial or an appeal, in which the factual merits of the case can be re-examined, and s/he will also be informed the time frame within which the application for the retrial or appeal has to be made.

Are there any human rights grounds on which a Member State can refuse to execute an EAW?

All Member States are signatories to the European Convention on Human Rights (ECHR) and are therefore bound by its terms.

Recital 13 of the EAW Framework Decision states that:

No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhumane or degrading treatment or punishment.’

Article 1(3) makes it clear that the EAW Framework Decision does not modify the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

However, it is important to note that there is no explicit right to refuse to execute an EAW on human rights grounds in the main body of the EAW Framework Decision. Some countries, such as the UK and the Netherlands, have written a human rights refusal ground into national legislation. If your jurisdiction does not explicitly provide for this, then there may still be human rights arguments that can be put forward in EAW cases based on the provisions above and the rights enshrined in the ECHR.

There is more information about ECHR based challenges to surrender, including on Article 3, 6, and 8 grounds, at subsequent sections of this training module.

Can Member States refuse surrender on additional grounds not provided in the Framework Decision in the interest of protecting fundamental rights in accordance with domestic constitutional law?

The Framework Decision is intended to harmonise procedures for surrendering individuals, not to set minimum standards. In the case of Melloni,[1] the Court of Justice of the European Union (‘CJEU’) was asked in a case where the requested person had been tried in absentia, whether or not the executing state could make the surrender conditional on the availability of re-trial in the issuing state. The CJEU held that Article 4a(1) of the Framework Decision did not contain provisions that enabled executing states to seek assurances on re-trials, and that the requesting states could not impose additional protections when implementing the Framework Decision to reflect domestic constitutional law. There is further discussion about the Melloni case at a later section in this training module.

Can an EAW be refused because the circumstances of the case make surrender disproportionate?

There is no explicit requirement in the EAW Framework Decision that a state applies a proportionality test when issuing an EAW and no refusal ground that allows an executing Member State to refuse to execute an EAW on these grounds. This may be an issue where, for example, the offence in question is minor, the person requested is in ill-health or a great deal of time has passed since the offence was committed.

However, proportionality is a general principle of EU law and the European Commission has stated that states should apply a proportionality test before issuing an EAW. It is therefore worth bearing in mind as a possible argument against surrender when working on EAW cases.

If the Member State orders execution of the EAW is there anything else you can do to prevent surrender?

It may be possible to appeal the final surrender decision. This possibility, as well as conditions and procedures attached to it, will vary in accordance with national law. For example, under UK law, there used to be an automatic right of appeal against surrender. However, this was amended by the Antisocial Behaviour, Crime, and Policing Act 2014, and appellants must now obtain leave to appeal.

If your case raises human rights arguments, you may also be able to obtain relief from the European Court of Human Rights under the ECHR. In particular, you may be able to seek interim relief under Rule 39, which requires the extradition proceedings to be halted until the Court has ruled on any potential breaches of the Convention they may cause.

What happens if there are multiple requests for the same person?

Where two or more Member States have issued an EAW for the same person, the competent judicial authority in the executing Member State must decide which to execute. When making this decision, the judicial authority should take all the relevant circumstances into account, especially the relative seriousness and location of the offences, the dates of the EAWs and whether the EAW is issued for the purpose of prosecution or for execution of a custodial sentence (Article 16(1)).

If a Member State has issued an EAW which conflicts with a request presented by a non-EU country, the competent judicial authority must make a decision as to which request takes precedence. This decision must involve a consideration of all relevant circumstances as described above and any circumstances mentioned in the applicable convention with the third country.

What happens if the requested person is wanted to stand trial for a criminal offence in the executing state?

The executing authority may postpone the surrender of the requested person so that he or she can be prosecuted in the executing Member State (or, if sentencing has already taken place, so that he or she can serve the sentence). Alternatively, the executive judicial authority may surrender the requested person under conditions to be determined by mutual agreement (for example that the person be returned following the conclusion of proceedings and having served his or her sentence in the issuing state).

[1] Stefano Melloni v. Ministerio FiscalCase C-399/11

Unit 1: Example Scenarios

Scenario 1

Jukka has been arrested in Finland on an EAW issued by Bulgaria for theft committed when he lived there a year earlier. Jukka denies committing the offence and does not want to be extradited to Bulgaria. He is worried that he will spend a long time in detention awaiting trial and that he will suffer due to the horrendous prison conditions in Bulgaria.

1. Think about whether Jukka is likely to be extradited to stand trial and what you could do as his defence lawyer to argue against surrender.

As a defence lawyer in an EAW case, the first thing you should do is try and make contact with a lawyer in the issuing state, in this case, Bulgaria. This can be essential not only to gather further information about the case but also to make sure that, if Jukka is surrendered, he has a lawyer to represent his interests. A Bulgarian lawyer, for example, may be able to talk to the prosecution authorities to see whether the case is ready for trial. If it is not then he or she may be able to persuade the authorities to delay asking for Jukka’s surrender until the case is finalised. This would avoid Jukka spending a long time in Bulgaria awaiting trial.

2. Can an EAW be issued in relation to Jukka’s offence?

In this case an EAW has been issued to request Jukka’s surrender to stand trial in Bulgaria. Provided that theft is punishable in Bulgaria with a custodial sentence or detention order for a maximum period of at least 12 months then an EAW can be issued (Article 2(1)).

3. Are there any mandatory refusal grounds for the EAW?

It is unlikely that theft is covered by an amnesty under Bulgarian law and as the offence took place in Bulgaria it is unlikely that Jukka has already been tried for same acts so ne bis in idem will not apply. Therefore, provided that Jukka has reached the criminal age of responsibility in Finland, there are no mandatory refusal grounds under Article 3.

4. Are there any grounds for optional non-execution of the EAW?

None of the optional grounds for refusal listed in Article 4 are applicable to the facts of Jukka’s case.

5. Are there any further grounds on which you could argue that the EAW should not be executed?

As Finland is a signatory to the ECHR, it is under an obligation not to extradite individuals where there is a serious risk that their Convention rights will be violated upon surrender (see Soering v UK in relation to Article 3 ECHR). You could therefore attempt to argue that surrendering Jukka to Bulgaria would breach his right not to be subjected to torture or other inhumane treatment under Article 3 ECHR. Due to the assumption that EU Member States abide by their Convention obligations, the burden of proof in such cases is very high and you must be able to provide substantial evidence supporting your claim specifically in order to successfully resist extradition on these grounds. Note however, that prison conditions in Bulgaria have been criticised by the European Court of Human Rights under its ‘pilot judgments’ procedure,[1] which could have the impact of rebutting the presumption that prisons in Bulgaria comply with Article 3 standards.

Despite there being no explicit human rights refusal ground in the EAW Framework Decision, you could use Article 1(3) and Recital 13 to support your argument. Following the CJEU’s judgment in Aranyosi,[2] you could argue on the basis of the ECtHR pilot judgment and other background evidence, that there are systemic problems in Bulgarian prisons that could expose Jukka to Article 3 ECHR (or Article 4 of the Charter) in the event of surrender, and that this requires Finland to seek further information from Bulgaria.

You could also explore the possibility of making Article 6 ECHR arguments in Jukka’s case, on the basis that his trial will not take place within a reasonable time, but be mindful that surrender is unlikely to be refused on Article 6 ECHR grounds in exceptional cases.

Jukka’s guilt or innocence is a matter to be decided in the issuing state, and will therefore not constitute a barrier to surrender.

6. If the courts in Finland order Jukka’s surrender to Bulgaria is there anything further you can do?

If Jukka is going to be surrendered to Bulgaria then you should make contact with a lawyer in Bulgaria to make sure that he has someone in place to represent him as soon as he arrives at pre-trial hearings.

[1] Neshkov and Others v. Bulgaria App. No. 36925/10

[2] Pál Aranyosi and Robert Căldăraru v. Generalstaatsanwaltschaft Bremen Joined Cases C-404/15 and C-659/15 PPU

Scenario 2

Agnieszka has been arrested in Ireland pursuant to an EAW issued by Poland in relation to a 10 month sentence suspended for three years that she received for the possession of 4.04 grams of amphetamine for personal use in 2009 when she was seventeen years old. A year after the sentence, Agnieszka moved to Ireland where she has been in permanent employment ever since and has not used drugs. In 2014, Poland activated the suspended sentence on the basis that Agnieszka had broken the terms of her probation by moving to Ireland. An EAW was issued and Agnieszka has been arrested. She is the sole carer for her 9 month old daughter, who will have to be taken into care if she is extradited to Poland.

1. Think about whether Agnieszka is likely to be extradited to serve this sentence and what you could do as her defence lawyer to argue against surrender.

As a defence lawyer in an EAW case, the first thing you should do is try and make contact with a lawyer in the issuing state, in this case Poland. This can be essential not only to gather further information about the case but also to make sure that, if Agnieszka is extradited, she has a lawyer to represent her interests.

2. Can an EAW be issued in relation to Agnieszka’s offence?

Yes. Under Article 2(1) an EAW can be issued where a sentence of at least four months has been passed. As Agnieszka was sentenced to 10 months imprisonment, an EAW can be issued.

3. Are there any mandatory refusal grounds for the EAW?

It is unlikely that possession of drugs is covered by an amnesty under Irish law and as the offence took place in Poland, ne bis in idem is unlikely to apply. Therefore, provided that the criminal age of responsibility is 17 or under in Ireland (the age at which Agnieszka committed the offence), then there are no mandatory refusal grounds under Article 3.

4. Are there any grounds for optional non-execution of the EAW?

Article 4(6) provides that if the EAW has been issued for the purposes of execution of a custodial sentence and the requested person is staying in, or is a national or resident of, the executing Member State then the EAW may be refused provided that the executing state undertakes to execute the sentence itself. As Agnieszka has been resident in Ireland for six years she may prefer to serve the sentence in Ireland, although Ireland would have to agree to execute the sentence. This is possible under Council Framework Decision 2008/909/JHA, under which Agnieszka does not need to be an Irish citizen to have her prison sentence transferred, so long as she can be considered a ‘long-term’ resident.[3]

5. Are there any further grounds on which you could argue that the EAW should not be executed?

You may wish to consider challenging the extradition on the grounds that it would breach Agnieszka’s and her child’s rights under Article 8 of the ECHR. Agnieszka has established a stable private life in Ireland with permanent employment and it is arguable that extraditing her would amount to a disproportionate interference with her private and family life despite the legitimate aim of executing her sentence. Agnieszka’s extradition would also mean that her child would be taken into care, which would have an irreversible effect on the child’s life and could arguably amount to disproportionate interference with its Article 8 rights.

It could be helpful for you to base your Article 8 arguments on the UK Supreme Court’s Decision in the case of HH,[4] taking into consideration, in particular not only the ways in which the child’s welfare could be affected, but also the seriousness of the offence, and the delays, which could have arguably diminished the public interest in surrender.

It should be noted that courts are often unwilling to hear arguments that do not directly relate to a refusal ground written in the EAW Framework Decision. However, all Member States are signatories to the ECHR and all Member State courts should be willing to consider valid arguments that relate to that state’s obligations under the Convention. If you feel that you have a strong human rights argument against extradition then, if all domestic appeals have failed, you could bring a case at the European Court of Human Rights in Strasbourg. If you do this then you should consider making a Rule 39 application to halt the extradition until the case is decided.

6. Is there anything else that you could do as Agnieszka’s defence lawyer?

Agnieszka is facing extradition in relation to a relatively minor offence that she committed years ago. As discussed above, there is no requirement to conduct a proportionality test in the EAW Framework Decision, but Poland should nevertheless have considered the proportionality of the warrant before issuing it. You should discuss this with your Polish counterpart and ask him/her to speak to the authorities in Poland to discuss the possibility of alternatives to Agnieszka’s surrender. This can be very effective. In some cases it may lead to the person paying a fine instead of being surrendered and in some cases it may lead to the warrant being withdrawn.

7. If the courts in Ireland order Agnieszka’s surrender to Poland is there anything further you can do?

If Agnieszka is going to be surrendered to Poland then you should make contact with a lawyer in Poland to make sure that she has someone in place to represent her as soon as she arrives at pre-trial hearings.

[3] See also the Grand Chamber judgment in the case of João Pedro Lopes Da Silva Jorge, Case C-42/11

[4] HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25

Module 4: The European Arrest Warrant and fundamental rights

Unit 1: Cases of Injustice

Here, we have provided a few individual cases that illustrate some of the main flaws of the EAW, and how the lack of sufficient safeguards in extradition proceedings can result in serious cases of injustice.

These cases demonstrate the human impact of the EAW, and some also provide examples of how, with the help of local lawyers in requesting state, cases of injustice can be prevented.


Andrew Symeou

Andrew Symeou spent close to two years in pre-trial detention in appalling conditions following his surrender from the UK to Greece pursuant to an EAW before he was eventually acquitted and allowed to go home.

Andrew was surrendered to Greece from the UK in July 2009 to face charges in connection with the death of a young man at a nightclub in a Greek island, despite evidence that the charges were based on statements extracted by the Greek police through the violent intimidation of witnesses, who later retracted their statements.

After being surrendered to Greece, Andrew was detained in appalling conditions, and was repeatedly denied bail on the basis that he was not a Greek resident. A trial date was set finally for 4 June 2010, by which point he had spent over a year in prison. However, this trial was adjourned due to the prosecution’s failure to ensure that witnesses attend trial, and it was only in March 2011 that his trial began.

Andrew was eventually acquitted in June 2011, after his life had been turned down as a result of his this experience.

Natalia Gorczowska

In 2011, Natalia Gorczowska was arrested on the basis of an EAW over a minor drug-offence committed five years prior. Her surrender to Poland could have meant that her one year old son would be taken into care, but the UK courts decided that this was no reason to stop her surrender.

Natalia was arrested in 2006 at the age of 17 for a small quantity of drugs, for which she was given a 10-month suspended sentence. One of the conditions of the sentence was to undergo drug rehabilitation. Aged 18, Natalia travelled to the UK, took on stable employment, and broke her addiction. In 2011, she gave birth to her son, for whom she became the sole carer.

Unbeknownst to Natalia, a court in Poland reactivated the suspended prison sentence against her, on the basis that she had breached the conditions of her suspended sentence by leaving Poland without telling her probation officer. It was on this basis that an EAW was issued in Dec 2010, and a year later, Natalia was arrested in the UK, with her child being temporarily left to be cared by a friend.

Natalia’s surrender to Poland would not only have meant that the clean lifestyle she had acquired in the UK would have been undermined, but few sources of support and her difficult family situation in Poland would have meant that her child would have been taken into local authority care in the UK. The Magistrates Court ordered Natalia’s surrender nonetheless, and a High Court judge dismissed her appeal, with both courts agreeing that the importance of ensuring respect for extradition agreements justified this interference with Natalia and her baby son’s right to family life.

Fortunately, in March 2012, a lawyer helping Natalia in Poland informed that a Polish court had decided not to activate the suspended sentence after all, and it was on this basis that Natalia’s EAW was eventually withdrawn.

Óscar Sánchez

Óscar Sánchez Spanish car wash attendant who was surrendered from Spain to Italy on an EAW with very little investigation. Nearly two years after his surrender, it was revealed that his identity had been stolen, and he was released.

Óscar was arrested in July 2010 on an EAW issued by Italy, and he was surrendered to Italy to face accusations in connection with drug-trafficking and membership of a criminal organisation. He subsequently spent 20 months imprisoned in Naples, where he suffered relentless physical abuse from other inmates.

Following a journalistic investigation by a Spanish newspaper, it was revealed that Óscar’s identity had been stolen, and that phones were taken out in his name. The prosecution evidence had relied on recordings of a series of phone calls intercepted by the police, but forensic linguistics found serious flaws in the way this evidence had been used to identify Óscar as the perpetrator.

In March 2012, after spending a total of 626 days in jail enduring numerous delays and linguistic tests, Oscar was finally acquitted, and he returned to his home in Spain.

Edmond Arapi

Edmond Arapi was arrested on an EAW in the UK and risked being surrendered to Italy, where he could have spent months in pre-trial detention, despite there being clear evidence of mistaken identity, which the UK courts were unable scrutinise.

In 2009, Edmond was arrested at an airport, on his way back from a family holiday, on the basis of an EAW issued by the Italian authorities. He had been accused of killing a man in October 2004, and he was wanted to serve a 16 year prison sentence, which had been handed down in his absence.

Edmond’s lawyers were quick to point out that he had not left the UK between 2000 and 2006 and raised concerns about mistaken identity. Despite this, the Magistrates’ Court hearing Edmond’s case ordered his surrender, unable to look further into the concerns about mistaken identity, despite the fact that fingerprints and the date of birth had been provided with the EAW.

It was only after a high profile campaign involving media, political, and legal pressure, that the Italian authorities admitted that they had made a mistake, and that the fingerprints, date of birth and photograph did not match Edmond’s.


Garry Mann

Garry Mann was surrendered from the UK to Portugal to serve a 2 year prison sentence imposed following a trial in Portugal in 2004, described by a UK court as ‘so unfair as to be incompatible with [his] right to a fair trial.’

Garry was arrested in June 2004 in Portugal. He was tried with a group of football supporters under a temporary fast-track procedure set up ahead of a football championship to combat football hooliganism, under which he was unable to instruct a lawyer, and unable to understand or participate in the proceedings due to the poor quality of interpretation. Despite these flaws in his legal proceedings, he was sentenced to 2 years’ imprisonment.

Garry returned to the UK under the assumption that if he agreed to voluntary deportation, he would not need to serve his prison sentence, but in 2009, he was arrested on an EAW to serve the 2 year prison sentence. The UK court handling Garry’s EAW case acknowledged that his trial in Portugal failed to comply with basic fair trial standards, but it was powerless to resist the Portuguese request, and Garry was surrendered in May 2010.


Graham Mitchell

Graham Mitchell was arrested in 2012 on an EAW that was based on accusations dating back to 1994, for which he had already been acquitted.

Graham was arrested in 1994 whilst on holiday in Portugal after a German tourist was allegedly pushed off a sea-wall, causing serious injury. Garry subsequently spent 10 months in detention without charge and subject to ill-treatment in prison. During investigations, Graham was provided with poor interpretation, and was asked on several occasions to sign untranslated documents.

Graham was subsequently acquitted and released following a trial in 1995, and he returned to the UK, but in 2012 he was arrested on an EAW, which was issued by a Portuguese court three years prior to face the same accusations he had faced in 1995. It transpired that the victim had appealed against the acquittal, and the court had ordered a re-trial.

Graham had been living openly following his return to the UK, but he was never at any point informed of any ongoing legal proceedings in Portugal during this time. Graham managed to avoid surrender after his lawyers in Portugal persuaded the authorities to drop the charges against him.

Deborah Dark

Deborah Dark faced an EAW based on a sentence handed down in her absence, and although the courts of two member states refused to extradite her, she continued to be at risk of arrest elsewhere in the EU.

Deborah was arrested and detained, first at gunpoint in Turkey, then in Spain, and then again in the UK to serve a prison sentence for a 20-year-old conviction. In 1989, Deborah had been found not guilty of drug related offences in France, but unbeknownst to her, the prosecutor had successfully appealed against the acquittal in her absence, following her return to the UK. She was never summoned to appear at court, nor was she informed of the conviction.

Although the courts in both the UK and Spain ruled that it would be unjust to surrender her, Deborah remained subject to the EAW in almost all other EU member states, leaving her trapped and unable to visit her family in Spain for three years. It was only after a public and political campaign in 2010 that France agreed to withdraw the EAW.

Unit 1 - National Responses

National Responses

The increased awareness of the flaws of the EAW Framework Decision has prompted Member States to take action to prevent cases of injustice in various ways. Below are some examples of how Member States have attempted to tackle the lack of safeguards to prevent the disproportionate use of EAWS, and to protect fundamental rights.

The United Kingdom

The UK implemented changes to its legislation to introduce additional safeguards intended to prevent cases of injustice caused by EAWs. The UK had already had a fundamental rights refusal ground in its legislation, as well as other protections, for example, for mental health reasons. (Section 25, Extradition Act 2003). However, there were some significant changes to UK law with the Anti-Social Behaviour, Crime and Policing Act 2014, which made a number of changes to the Extradition Act 2003. These include the following:

1. Bar to extradition where no ‘prosecution decision’ has been made in the requesting state: This amendment was intended to ensure that surrenders take place only when the case is ‘trial-ready’, and to prevent cases similar to that of Andrew Symeou, who was surrendered under the EAW and ended up spending over a year in pre-trial detention. Under section 12A of the Extradition Act, the extradition judge is able to bar surrender, if there are reasonable grounds for believing that the issuing state has made neither a decision to charge nor a decision to try the requested individual, and the requested individual’s absence is not the sole reason why neither decision has been made.

https://www.youtube.com/watch?v=xECivq5G86k

In this video, Saoirse Townshend, a barrister at 36 Bedford Row, outlines how the UK has responded to rights concerns surrounding the European Arrest Warrant in more detail. She looks in particular at how the European Extradition Act of 2003 has been amended to better protect the rights of those being charged with crimes abroad.

2. Proportionality Bar: Under Section 21A of the Extradition Act, the judge has the power to refuse surrenders on proportionality grounds, taking into consideration the seriousness of the offence; the likely penalty imposed on the requested individual; and the possibility that the measures taken by the issuing state will be less coercive than the extradition.

3. Temporary Transfer: The Anti-Social Behaviour, Crime and Policing Act 2014 transposed Articles 18 and 19 of the EAW Framework Decision, which makes it possible for the requested person to be transferred to the issuing state on a temporary basis, or for arrangements to be made to enable the requested person to speak with the competent authorities of the issuing state.

[1] Section 25, Extradition Act 2003

 

Germany

In a December 2015 judgment,[1] the Constitutional Court of Germany (‘BVerG’) assessed whether or not German laws transposing the EAW Framework Decision, is compatible with the overriding principles of the German Constitution. The BVerG did this in a case concerning the execution of an EAW against a US citizen sought by Italy on the basis of a conviction in absentia and there was no possibility of a new evidentiary hearing in appeals proceedings. The BVerG held that in individual cases concerning the protection of fundamental rights, it had the authority to review sovereign acts determined by EU law, as far as this was necessary to protect the overriding principles of the German Constitution.

This decision can be compared and contrasted with the CJEU’s judgment in Melloni,[2] which also concerned an individual being sought by Italy on a conviction warrant based on a trial in absentia. As highlighted previously, the EAW Framework Decision allows Member States to refuse to execute an EAW where the requested individual was tried in absentia, in certain cases, and Member States cannot refuse surrender if the requested person was not present at trial but represented by a lawyer. In Melloni, the requested person had been represented by his lawyer, but the Spanish Constitutional Court considered whether existing domestic standards on the right to be present could still prevent the surrender from taking place on the fundamental rights grounds under domestic constitutional law. The CJEU decided that Member States could not apply higher standards under domestic constitutional law in order to refuse the EAW.

By contrast, the BVerG’s decision is uncontroversial on the facts in that it concerned an in absentia trial that had taken place in violation of many basic procedural rights and in the absence of legal representation. Germany’s refusal to execute the EAW on these grounds would not have been incompatible with the provisions of the EAW Framework Decision on trials in absentia. However, the BVerG’s decision has been interpreted as a way of sending a message to the CJEU about its willingness to apply domestic constitutional standards, even despite the judgment in Melloni.

[1] Order of 15 December 2015, 2 BvR 2735/14. Available at http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2016/bvg16-004.html;jsessionid=A1235A9967C58FC4EC86960E0E430AD2.2_cid392

[2] Stefano Melloni v. Ministerio Fiscal Case C-399/11

Poland

Whereas examples from the United Kingdom and Germany amount to attempts to create additional barriers and protections against mutual recognition, Poland has made efforts to reinforce mutual recognition, in response to criticisms of its disproportionate use of EAWs. This problem arose because under Polish law, prosecutors lack discretionary powers, which means that they need to prosecute in all cases.

In order to allay these concerns ‘soft law’ measures have been introduced, including the production of a handbook on the issuance of EAWs, training for judges and prosecutors, as well as the organisation of bilateral meetings with the authorities of the Member States which are affected the most. Changes to legislation were also proposed, including amendments to the Polish criminal procedure code to encourage the greater use of financial penalties in favour of custodial sentences.

Unit 2: Responses from the EU

Concerns about the inadequate protection of fundamental rights in the context of the EAW and other mutual recognition instruments have not gone unnoticed by the institutions of the EU, including the Council and the European Parliament.


The Council’s Handbook

In 2014, the Council of the European Union issued the ‘European Handbook on how to issue a European Arrest Warrant’,[1]which encourages the competent authorities of issuing states to make a proportionality assessment when deciding whether or not to issue an EAW in a particular case, ‘considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free movement of the requested person’. In doing so, the Council listed a number of factors to be taken into account when making the proportionality assessment, including the seriousness of the offence, the possibility of the requested person being detained, and the likely penalty imposed on the requested person if they are eventually convicted.

[1] Council Document 17195/1/10 REV 1


The European Parliament’s Report

The criticisms of the EAW and the injustices caused by the lack of safeguards to protect fundamental rights, in particular, has been recognised by the European Parliament. In 2014, the Parliament, taking note of unilateral reforms adopted by Member States, adopted a report calling on the Commission to propose reforms of the EAW.[1]

The main legislative changes proposed by the report included the following:

  • Clarification of the definition of ‘issuing authority’ in EU criminal legislation;
  • Proportionality test for mutual recognition measures;
  • Consultation procedure between the competent authorities of issuing and executing state to facilitate the sharing of information with a view to the smooth and efficient application of mutual recognition instruments;
  • Fundamental rights refusal grounds in mutual recognition instruments; and
  • Provision on effective legal remedies.

However, the response from the Commission to these proposed changes was less than enthusiastic. The then Vice-President of the Commission stated that reform of the EAW would be ‘premature’, particularly because the Commission was soon to be given powers to bring infringement proceedings against Member States, potentially on matters of concern raised by the report.[2]

[1] Committee on Civil Liberties, Justice and Home Affairs, Report with recommendations to the Commission on the review of the European Arrest Warrant 2013/2109(INL)

[2] European Parliament, European Investigation Order – European Arrest Warrant (Debate), 26 Feb 2014


The European Investigation Order

The Directive on the European Investigation Order (‘EIO’),[1] which was adopted in April 2014, is unlike earlier mutual recognition instruments in that it contains explicit grounds for refusing the EIOs on fundamental rights grounds.[2] The inclusion of fundamental rights grounds for refusal can be interpreted as the EU’s response to the criticisms of the weak human rights safeguards in mutual recognition instruments.

[1] Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order.

[2] Article 11(1)(f)


The CJEU’s Opinion

The relationship between mutual recognition and fundamental rights has also been considered in the CJEU’s opinion in the EU’s accession to the European Convention on Human Rights.[1]

The CJEU, in its opinion, reiterates the importance of mutual recognition between Member States, and that when implementing EU law, Member States may be required to presume that fundamental rights are being respected by other Member States. This means that Member States are prevented from checking whether other Member States are observing these rights, save in exceptional cases.[2]

The CJEU went on to opine that the EU’s accession to the ECHR could compromise the operation of the operation of mutual recognition instruments and therefore ‘upset the underlying balance of the EU and undermine the autonomy of EU law.’[3]

The CJEU has also been asked to give its opinion on the extent to which surrender under an EAW could be refused on fundamental rights grounds in the case of Aranyosi.[4] This case is discussed in more detail later in this training module, in the context of challenges made on Article 3 ECHR grounds.

[1] Opinion 2/13 of the Court

[2] At para. 191-193

[3] At para. 194

[4] Pál Aranyosi and Robert Căldăraru v. Generalstaatsanwaltschaft Bremen Joined Cases C-404/15 and C-659/15 PPU

Unit 3: Article 3 Challenges

Article 3 ECHR prohibits torture and inhumane or degrading treatment or punishment. Unlike most other human rights protected by the ECHR, the right protected under Article 3 is an unqualified right, and there are no circumstances under which it can be compromised or justified.

The ECtHR has established that Article 3 ECHR could be a basis on which surrenders should be refused, if the requested person faces a ‘real risk’ of torture, or inhumane or degrading treatment or punishment.[1] However in the context of the EAW Framework Decision, which places a high level of confidence between Member States, there is a strong presumption that all Member States comply with the human rights standards established by the ECHR.

In EAW cases, Article 3 ECHR challenges are raised most commonly in relation to poor prison conditions in the issuing state. Given the presumption that prisons across the EU comply with Article 3 ECHR standards, it is uncommon that surrender pursuant to an EAW is challenged successfully on Article 3 ECHR grounds. However, the strength of this presumption has been undermined thanks to the ECtHR’s case-law relating to the conditions of detention for asylum-seekers,[2] and the CJEU has recently clarified the circumstances in which surrender pursuant to an EAW could be refused on the basis of poor prison conditions in the issuing state.

[1] Soering v. the United Kingdom App. No. 14038/88, at para. 91

[2] M.S.S. v. Belgium and Greece App. No. 30696/09


CJEU Jurisprudence

The CJEU was recently asked in the case of Aranyosi[1] to consider, in cases where a surrender under an EAW is challenged on detention conditions grounds, whether or not Article 1(3) the EAW Framework Decision[2] provides a basis for refusing surrender or for making surrender conditional upon assurances, and if so, whether minimum conditions can be requested by the executing state.

The Advocate-General opined in this case that if concerns are raised relating to detention conditions in the issuing state, the judicial authority of the executing case should not be able to ask for more information to assess whether or not there is a risk that the individual being detained will be subject to ‘inhumane’ conditions. The Advocate-General accordingly advised the CJEU that Article 1(3) of the Framework Decision did not provide a ground to refuse EAWs on this basis.

However, the CJEU did not follow the Advocate-General’s opinion, and confirmed that Member States are obliged to respect the fundamental rights of individuals when considering EAWs. The CJEU held that Member States need to conduct human rights enquiries prior to deciding EAW cases, and to refuse surrender where there is a real risk that a requested individual will be subjected to detention conditions that violate their fundamental rights.

‘…where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State.’[3]

The CJEU suggested that information that could help to determine whether or not there is a real risk of inhuman or degrading treatment could be obtained from a number of different sources, including the judgments of the ECtHR.[4] One of the requested persons in Aranyosi based his complaints about prison conditions in the issuing state on a ‘pilot judgment’ of the ECtHR – a procedure which is explained in more detail below. However, the CJEU stressed that if the risk of inhuman and degrading treatment is based on general information about prison conditions in the issuing state, this does not, in itself, provide a basis on which surrender must be refused. Instead, there need to be substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State.[5]

The Aranyosi judgment also obliges judicial authorities to defer execution of an EAW until the requesting Member State has provided sufficient information to make clear whether or not the person’s fundamental rights are at real risk of being violated. If sufficient information is not provided within a ‘reasonable period’ of time, the judicial authority may decide to end surrender proceedings.

… the executing judicial authority must request that supplementary information be provided by the issuing judicial authority, which, after seeking, if necessary, the assistance of the central authority or one of the central authorities of the issuing Member State, under Article 7 of the Framework Decision, must send that information within the time limit specified in the request. The executing judicial authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.

[1] Pál Aranyosi and Robert Căldăraru v. Generalstaatsanwaltschaft Bremen Joined Cases C-404/15 and C-659/15 PPU

[2] The provision declaring that the Framework Decision does not have the effect of modifying fundamental rights and the fundamental principles enshrined in Article 6 of the Treaty on European Union (which include the Charter on Fundamental Rights and the European Convention on Human Rights)

[3] At para. 104

[4] At para. 89

[5] At para. 92


The ECtHR and Prison Conditions in Member States

Despite the high level of confidence that prison conditions in all Member States comply with ECHR, there is an abundance of individual cases, including those from Member States, in which the ECtHR has found violations of Article 3 ECHR on the basis of poor prison conditions, overcrowding, and ill-treatment in detention.

In addition to finding violations in individual cases, the ECtHR has found violations of Article 3 ECHR with regard to poor prison conditions in a number of ‘pilot’ judgments. The pilot procedure is the way in which ECtHR handles large numbers of repetitive cases that derive from a common systemic problem at the domestic level. By issuing pilot judgments against contracting states, the ECtHR identifies the structural problems and the root causes that give rise to the large number of repetitive cases before the Court, and it obliges the government in question to fix these problems.

To date, the ECtHR has in recent years issued pilot judgments on prison conditions against three Member States – Italy (Torreggiani and Others[1]), Bulgaria (Neshkov and Others[2]), and Hungary (Varga and Others[3]). In the case of Torreggiani, for example, the ECtHR identified that there were structural, systemic problems that caused overcrowding in Italian prisons, which could be evidenced by hundreds of applications being made to the ECtHR alleging Article 3 ECHR violations. Having identified these problems, the ECtHR requested the government to put into place measures that would provide effective remedies that would afford individuals sufficient redress in cases of overcrowding.

At the domestic level, the ECtHR’s pilot judgments have had the impact of rebutting the presumption of Member State compliance with Article 3 ECHR standards. In the UK, this happened in the case of Badre v Court of Florence, Italy[4] on the basis of the pilot judgment in Torreggiani. In Badre, the High Court found on the basis of the ECtHR pilot judgment and other evidence of systemic problems in the Italian penitentiary system, the presumption that prison conditions in a Member State complies with ECHR standards had been rebutted. In the absence of sufficient assurances provided by the Italian authorities, it was held that the requested person would be exposed to a real risk of treatment that violates Article 3 ECHR.

Practitioners should draw on the CJEU decision in Aranyosi and case-law of the ECtHR to build arguments in their own cases, but they should also ensure that they have sufficient case-specific evidence to strengthen these arguments. Background evidence, including reports produced by governmental and non-governmental agencies, and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’) could be helpful. Where possible, practitioners may also wish to instruct expert witnesses, including local criminal lawyers who are familiar with the prisons in the issuing state.

[1] Torreggiani and Others v. Italy App. No. 43517/09

[2] Neshkov and Others v. Bulgaria App. No. 36925/10

[3] Varga and Others v. Hungary App. No. 14097/12

[4] [2014] EWHC 614 (Admin)

Alternatives

Requested persons who are concerned about the detention conditions in the issuing state, and are subject to conviction warrants may wish to consider the possibility of serving their sentence in their home country, as an alternative to being surrendered under the EAW. This is made possible under Council Framework Decision 2008/909/JHA,[1] under which custodial sentences handed down in one Member State can be recognised and enforced in another, without the need for the physical transfer of the prisoner.

[1] 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

Unit 4: Article 6 Challenges

Article 6 ECHR protects the right to a fair trial, and it has specific provisions specific to the rights of the accused in criminal proceedings. Article 6 ECHR could, under certain circumstances, be a ground for refusing surrender pursuant to an EAW, but for reasons discussed in previous sections and explained below, successful challenges to surrender on this ground are rare.


ECtHR Jurisprudence

The ECtHR has recognised that there are circumstances in which an extradition decision might ‘exceptionally’ violate Article 6 ECHR, where the requested person has suffered or risks suffering a ‘flagrant’ denial of a fair trial.[1]

An explanation of what is meant by a ‘flagrant denial of a fair trial’ is given in the Grand Chamber judgment of Mamatkulov and Askarov v. Turkey[2], in the joint partly dissenting opinion of judges Sir Nicolas Bratza, Bonnello, and Hedigan.[3]

What constitutes a “flagrant” denial of justice has not been fully explained in the Court’s jurisprudence, but the use of the adjective is clearly intended to impose a stringent test of unfairness going beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. As the Court has emphasised, Article 1 cannot be read as justifying a general principle to the effect that a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention (see Soering, cited above, pp. 33-34, § 86). In our view, what the word “flagrant” is intended to convey is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article(Emphasis added)

The ECtHR has therefore set a high threshold for Article 6 challenges to extradition. The existence (or the risk) of irregularities in the requested person’s criminal proceedings that undermines the fairness of their trial does not, in itself, mean that the extradition should be refused on Article 6 grounds, even if the Court would have found Article 6, had the trial taken place in a Contracting State.

Examples of situations in which the Court might find that a flagrant denial of justice are given in Othman (Abu Qatada) v. United Kingdom[4]. These include cases involving the following forms of violations:

  • convictionin absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge;
  • a trial which is summary in nature and conducted with a total disregard for the rights of the defence;
  • detention without any access to an independent and impartial tribunal to have the legality the detention reviewed; and
  • deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country.

[1] Soering v. the United KingdomApp. No. 14038/88, at para. 113

[2] App. No. 46827/99

[3] At para. 14 of the opinion

[4] App. No. 8139/09, at paras. 258-290


Article 6 ECHR Challenges to the EAW

Given the limited scope within which human rights challenges can be made under the EAW Framework decision, and the high threshold set by the ECtHR, very few challenges to the EAW on Article 6 ECHR grounds have been successful. One rare example is the Irish High Court decision The Minister for Justice and Equality v. Magdalena Rostas.[1]

In Rostas, the requested person was a Romanian national of Roma background, who was subject to a Romanian EAW to serve a 3 year 4 month sentence for robbery dating from 1996. She argued that had suffered a flagrant denial of justice in Romania, on account of the systemic discrimination against Roma people in the Romanian criminal justice system at that time. The High Court held in this case that the presumption that the EAW was based on a conviction resulting from a fair trial had been rebutted, on the basis of strong background evidence and the account given by the requested person.[2]

It is noteworthy that the judge remarked in Rostas that the issuing state had done little to counter the allegations put forward by the requested person that she had suffered a flagrant denial of justice,[3] and the judge also made it clear that this decision was highly specific to the facts of the case and to the geopolitical context in which the trial had taken place.

It bears remarking upon that the present case is highly exceptional in its facts and circumstances, not least in terms of the passage of time since the offence itself and the trial, conviction and sentencing of the respondent, and also the geopolitical context in which those key events occurred. As such it represents a rare case in which the Court considers that it has a duty to intervene as executing judicial authority to prevent surrender on the grounds of the respondent possibly having been subjected to an unfair trial. Moreover, the mere fact that the Court considers that, on the evidence before it, there are substantial grounds for believing that there is a real risk that the respondent suffered a flagrant denial of justice with respect to a trial that took place in a very different Romania from today’s Romania, can have no implications beyond the case presently before the Court. It represents a decision on the facts of the particular case before the Court which facts are unlikely to be exactly replicated. In so far as future cases are concerned, whether an objection to a respondent’s surrender based upon the unfairness of an underlying conviction could similarly succeed would depend on the nature and strength of the evidence adduced in the particular case.[4]

In the UK, the High Court came close to refusing surrender pursuant to an EAW on Article 6 ECHR grounds in Office of the Prosecutor General of Turin v Barone.[5] In Barone, the requested person was subject to an EAW based on an in absentiaconviction in Italy dating from 1981. He argued that he had been denied a fair trial under Italian law, because there was now no basis on which he could get his case reviewed substantively in the absence of fresh evidence. Although the main substance of the requested person’s arguments were based on Article 6 ECHR grounds, the High Court decided instead allowed his appeal on ‘abuse of process’ grounds, given that the issuing state had failed to provide any information or evidence to counter the Article 6 ECHR arguments.[6]

[1] [2014] IEHC 391

[2] At para. 116

[3] Ibid.

[4] At para. 117

[5] [2010] EWHC 3004 (Admin)

[6] At paras. 38-39


The CJEU’s approach

The CJEU was asked by a court in Romania in the case of Radu[1] to clarify the extent to which Member States should have regard to Articles 6, 47, and 48 of the Charter of Fundamental Rights (which protect the right to liberty and the right to a fair trial) when executing the EAW, and the extent to which these might be grounds on which surrender pursuant to an EAW could be refused.

Although the questions asked by the Romanian court were broad and they had potentially significant implications on the interpretation of the EAW Framework Decision, the CJEU decided to take a much narrower approach in its judgment. It instead concentrated on the question of whether the issuing state’s failure to subpoena the requested individual prior to requesting his surrender could be a basis for a refusal, and held that Articles 47 and 48 of the Charter did not provide grounds for refusing surrender on this basis.

The questions were however, answered more substantively by Advocate-General Sharpston QC in her opinion. She took a more rights-focussed approach, and while recognising that surrender pursuant to an EAW should only be refused in exceptional cases, she favoured a less stringent test than that set out in ECtHR case-law on the basis on which EAWs could be refused on Article 6 ECHR grounds:

…. I take issue, however, with the case-law of the Court of Human Rights in two respects. First, I do not feel that I can recommend to this Court that it accept the test that the breach in question should be ‘flagrant’. Such a concept appears to me to be too nebulous to be interpreted consistently throughout the Union. It has been suggested that the breach must be so fundamental as to amount to a complete denial or nullification of the right to a fair trial. 

 However, such a test – assuming always that it can be clearly understood – seems to me unduly stringent. Construed in one way, it would require that every aspect of the trial process be unfair. But a trial that is only partly fair cannot be guaranteed to ensure that justice is done. I suggest that the appropriate criterion should rather be that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy its fairness[2]

[1] Ministerul Public – Parchetul de le lângă Curtea de Apel Constanţa v.Ciprian Vasile Radu Case C-396/11

[2] At paras. 82-83


The ‘Roadmap’ Directives

The lack of sufficient safeguards in the EAW Framework Decision has caused serious cases of injustice, and it has highlighted the significant differences between Member States on the extent to which fair trial rights in criminal proceedings are protected.

The EU has recognised that mutual recognition measures including the EAW Framework Decision have created a demand for stronger protections for fair trial rights across the EU, and in 2009 a ‘Roadmap’ on procedural rights was adopted by the Justice and Home Affairs Council of the Council of the European Union, proposing legislation on various procedural rights. This legislative programme has so far resulted in 5 Directives:

  • Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings (adopted in October 2010, transposition deadline October 2013);
  • Directive 2012/13/EU on the right to information in criminal proceedings (adopted in April 2012, transposition deadline June 2014);
  • Directive 2013/48/EU on the rights of access to a lawyer in criminal proceedings (Adopted October 2013, transposition deadline November 2016);
  • Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (adopted in March 2016, transposition deadline April 2018); and
  • Directive on procedural safeguards for children suspected or accused in criminal proceedings (agreed in December 2015, yet to be adopted).

Practitioners may find these Directives to be useful instruments on which to base their Article 6 arguments in EAW cases. These Directives set EU-wide minimum standards against which the Article 6 compliance of surrender should be measured, and they were intended to strengthen mutual trust, and in turn, facilitate the operation of mutual recognition instruments. Given the purpose for which these Directives were introduced, it could be argued that proven failure by a Member State to uphold these standards could be a ground for refusal, or a matter that could be referred to the CJEU for guidance by way of its preliminary ruling procedure. There is more on the role of the CJEU later in this training module.

Fair Trials and LEAP (an EU-wide network of over 160 criminal justice experts) is working on various reports on the implementation of the Directives, which could form the basis of practitioners’ inquiry into whether or not a particular Member State is complying with the minimum standards set out in these Directives. The Commission will also be publishing reports on the implementation of the Right to Interpretation and Translation Directive and the Right to Information Directive, which could also be instructive in this regard.

Unit 5: Article 8 Challenges

Article 8 ECHR prohibits the interference with the right to private and family life by a public authority. This however, is a highly qualified right, and the ECHR permits the lawful interference of this right, as necessary in a democratic society ‘for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Being separated from family and friends with few sources of social support are one of the most common concerns of individuals subject to an EAW. This means that Article 8 ECHR based arguments are ones that many requested persons are likely to consider exploring in order to resist extradition.

Here, leading extradition solicitor Ed Grange talks you through how Article 8 can be relied upon in extradition cases.

ECtHR case-law

There is only very limited case-law from the ECtHR about the circumstances in which an extradition could amount to an unlawful interference with one’s Article 8 rights.

In Launder v. the United Kingdom[1] the then European Commission of Human Rights held that the applicant’s claim that his extradition from the UK to Hong Kong SAR would amount to an unlawful interference with his right to family life was manifestly ill-founded and commented:

… Only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences would be held to be an unjustified or disproportionate interference with the right to respect for family life.

The ECtHR recognised in King v. the United Kingdom[2] that states have a legitimate interest in upholding international extradition arrangements in the fight against crime, adopting the position taken by the Commission in Launder, that it will only be in exceptional cases that the Court would find that the applicant’s family life in a contracting state will outweigh the legitimate aim of pursuing an extradition.

There is little guidance provided by the ECtHR on the circumstances in which interests of protecting family life under Article 8 would outweigh the interest of pursuing an extradition, and what factors would be taken into consideration when carrying out its assessment. There is however, more guidance provided in the context of deportation proceedings. In Uner v. the Netherlands,[3]the ECtHR provided a list of factors that the Court would take into account when determining an explusion would be ‘necessary in a democratic society’.[4] These included the following:[5]

  • The nature and seriousness of the offence;
  • The duration of the applicant’s stay in the country from which they are facing expulsion;
  • The applicant’s family situation (e.g. the length of the marriage);
  • Factors that would be relevant for the determination of the genuineness of family life;
  • Whether the spouse was aware of the offence at the time s/he entered into the relationship;
  • The existence of children, and if so, their age;
  • The difficulties that family members would face as a result of the expulsion;
  • The best interests and well-being of the children; and
  • The strength of social, cultural and family ties in the ‘host’ country and the country to which the individual faces expulsion.

These guidelines should be treated with caution, given that they are specific to deportation proceedings, but the ECtHR has referred to Uner in the context of extradition cases.[6]

[1] App. No. 27279/95

[2] App. No. 9742/07

[3] App. No. 54273/00

[4] Ibid. at paras. 57-58

[5] The first seven of which were identified in Boultif v. Switzerland App. No. 54273/99, at para. 48

[6] For example, in Shakurov v. RussiaApp. No. 55822/10

Article 8 ECHR and the EAW – the case-law of the United Kingdom

The Supreme Court of the United Kingdom considered the question of the circumstances under which an individual’s right to family life under Article 8 ECHR could outweigh the interest of surrendering them under an EAW in the case of HH v. Deputy Prosecutor of the Italian Republic, Genoa.[1]

The Supreme Court drew out a number of guiding principles in HH, including the following:[2]

  • The question is always whether the interference with the private and family lives of the requested person and other members of their family is outweighed by the public interest in extradition;
  • There is a ‘constant and weighty’ public interest in extradition;
  • The weight attached to the public interest in extradition could vary according to the seriousness of the offence allegedly committed; and
  • The public interest in extradition can be diminished by delays.

The Court recognised that it was unlikely that the Article 8 ECHR would be outweighed by the public interest in extradition, unless the consequences of the interference would be ‘exceptionally severe’. However, it was also suggested that the ‘exceptionality test’ did not apply.

A practical application of HH can be found in the High Court case of Krzysztof Juszczak v. Circuit Court Poznan. In Juszczak,[3]the appellant was the father and carer of a severely disabled child subject to an EAW for an offence committed in 2004, and for which the Serious Organised Crime Agency failed to act for over three years. The court emphasised the relevance of the delays in allowing the appeal on Article 8 ECHR grounds.

The Supreme Court’s judgment in HH has resulted in a significant increase in the number of appeals in the UK that engage Article 8 ECHR. Perhaps in response to this, the Lord Chief Justice recently provided a clarification on how courts should assess Article 8 ECHR claims in EAW cases in Polish Judicial Authorities v. Celinski & Others.[4] In particular, Celinski emphasises that the public interest in honouring extradition arrangements is high, pointing out that HH dealt primarily with the interests of children, and it reminds courts to give effect to the mutual trust that forms the basis of the EAW Framework Decision.

[1] [2012] UKSC 25

[2] At para. 8

[3] [2013] EWHC 526 (Admin)

[4] [2015] EWHC 1274 (Admin)


Alternatives

Requested individuals who wish to challenge their EAW on Article 8 grounds, and are subject to conviction warrants may wish to consider the possibility of serving their sentence in their home country, rather than being surrendered to a foreign country, far from their family and friends. This is made possible under Council Framework Decision 2008/909/JHA,[1] under which custodial sentences handed down in one Member State can be recognised and enforced in another, without the need for the physical transfer of the prisoner.

[1] 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

Unit 6: The Role of Assurances

It is not uncommon, where extradition requests are challenged on human rights grounds, for the issuing state to provide assurances to counter the evidence supporting the existence of the alleged risk.

In the Aranyosi[1] judgment, the CJEU found that there was a positive obligation on executing states to make further enquiries with the issuing states, where there is objective, reliable, specific and up-to-date evidence that displaces the presumption that the prison conditions of the issuing state fails to comply with fundamental rights standards. Following Aranyosi, assurances are likely to become of increasing relevance in EAW cases, particularly when Article 3 ECHR concerns are raised, and it will be useful for practitioners to get a better understanding of how executing states should treat assurances provided by issuing states.

[1] Pál Aranyosi and Robert Căldăraru v. Generalstaatsanwaltschaft Bremen Joined Cases C-404/15 and C-659/15 PPU

Watch our video featuring Rebecca Niblock, an associate at law firm Kingsley Napley, who discusses the role of assurances which comes into play with the use of Article 3 of the European Convention of Human Rights, looking at extradition in particular.

ECtHR Jurisprudence

The ECtHR set out guiding principles on assurances, and the extent to which assurances can be relied upon in the case of Othman.[1] In Othman, the applicant argued that his extradition to Jordan would expose him to the risk of ill-treatment, despite assurances provided by the Jordanian government.

The ECtHR recognised that where assurances have been provided, they should be taken into consideration for determining the risk to the individual facing extradition, but it also stressed that the mere existence of assurances does not amount to an effective guarantee that the individual’s rights will be protected. The Court stated that there was a need for states to examine the assurance more closely:

There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time[2]

The Court also provided a list a non-exhaustive list of factors that should be taken into account for the purpose of determining the appropriate weight that needs to be attached to assurances:[3]

  1. whether the terms of the assurances have been disclosed to the Court;
  2. whether the assurances are specific or are general and vague;
  3. who has given the assurances and whether that person can bind the receiving State;
  4. if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them;
  5. whether the assurances concerns treatment which is legal or illegal in the receiving State;
  6. whether they have been given by a Contracting State;
  7. the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances;
  8. whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers;
  9. whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
  10. whether the applicant has previously been ill-treated in the receiving State; and
  11. whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State.

Given the high level of confidence placed between Member States, assurances provided by one Member State to another in the context of EAW proceedings are likely to satisfy many of the criteria set out in Othman. However, as seen in the case of Badre,[4]the mere fact that an assurance is given by a Member State does not necessarily mean that it will be relied upon. In Badre, the mere assertion provided the Italian authorities that the requested person will be given a fair trial was seen by the UK court as an unhelpful and insufficient assurance.

[1] Othman (Abu Qatada) v. the United Kingdom App. No. 8139/09

[2] At para. 187

[3] At para. 189

[4] Hayle Abdi Badre v. Court of Florence, Italy [2014] EWHC 614 (Admin)


Criticisms of Assurances

The effectiveness of assurances depends on the existence of mechanisms that ensure that they are complied with. Otherwise, the very nature of assurances require the executing state to trust the issuing state that provided the assurances.

The UK House of Lords, in particular, was critical of the use of assurances in extradition proceedings.[1] Pointing to examples in which assurances provided by Member States prior to the execution of EAWs were not respected, the House of Lords criticised the lack of effective arrangements in place for monitoring the assurances.  Finding that there is ‘no confidence that assurances are not being breached, or that they can offer an effective remedy in the event of a breach’, the House of Lords recommended the government to review the ways in which it monitors assurances.

[1] Select Committee on Extradition Law – Second Report of Session 2014-2015, Extradition: UK law and practice

Unit 7: Dual Representation

What is meant by dual-representation?

In EAW proceedings, dual representation refers to an arrangement under which the individual has legal assistance from lawyers both in the issuing state and in the executing state.

The nature of the assistance provided by the lawyer in the issuing state is likely to depend on the facts of the case, and the ability to finance such assistance.


What are some of the main benefits of dual-representation?

Dual representation could be helpful for an individual subject to an EAW for various reasons, including the following:

  • The lawyer in the issuing state might be able to provide information about the prosecution’s case that is of relevance to the EAW proceedings;
  • The lawyer in the issuing state might be able to provide information about the criminal justice system and the laws of the issuing state that helps the requested person to challenge his/her surrender. This could, for example, include information about prison conditions that forms the basis of Article 3 ECHR based challenges, and advice on local legal provisions that affects the requested person’s right to a fair trial under Article 6 ECHR;
  • On certain occasions, lawyers in the issuing state have also been able advocate for the withdrawal of the EAW, and/or by facilitating alternatives to the EAW, such as voluntary transfer;
  • The lawyer in the issuing state might be able to advise on the likely impact of the requested person’s EAW proceedings on his/her criminal proceedings. It may, for example, be worth seeking advice on whether or not the requested person’s decision to resist surrender will have any impact on his/her final sentence, and about how it might affect decisions relating to pre-trial detention; and
  • Given that EAWs can be very difficult to resist, it could be beneficial for the individual subject to an EAW to be given access to legal representation in the issuing state as soon as possible, in order to give the lawyer as much time to prepare his/her substantive case. Depending on the jurisdiction, early access to legal representation could also enable the requested person to make the most of any plea-bargaining mechanisms or other alternative legal procedures, which might help him/her secure the best possible outcome in his case.

Is there a right to dual-representation in EAW cases?

It is often difficult to ensure that an individual subject to an EAW has access to legal representation both in the issuing state, and in the executing state. This is particularly so if neither the requested individual nor the extradition lawyer has much knowledge or experience in the issuing state.

However, the benefits of dual representation have been recognised by the EU, and the Access to a Lawyer Directive[1] contains provisions that aim to help individuals subject to an EAW to access legal representation both in the issuing state and in the executing state.

The United Kingdom, Ireland and Denmark have ‘opt-outs’ from the EU’s area of freedom, security and justice. In the case of the United Kingdom, this special status was negotiated under the Lisbon Treaty, and it allows the United Kingdom to out in or out of EU legislation relating to police and criminal justice on a case-by-case basis. The United Kingdom has decided to opt out of the Access to a Lawyer Directive, which means that it will not be implemented in the United Kingdom (unless its position changes in the future).

Under Article 10(4) of the Access to a Lawyer Directive, the competent authority of an executing state is required, without undue delay, to inform an individual arrested pursuant to an EAW of their right to appoint a lawyer in both the issuing and executing state. If the requested individual chooses to exercise his/her right to legal representation in the issuing state, the competent authority of the executing state has to liaise with their counterparts in the issuing state, which must then provide the requested person necessary information to facilitate their access to a lawyer.

The purpose of the lawyer in the issuing state has been defined to be  “to assist the lawyer in the executing Member state by providing that lawyer with information and advice with a view to the effective exercise of the rights of requested persons” under the EAW Framework Decision. As explained in Recital 45 of the Access to a Lawyer Directive, the competent authorities of the issuing state might be able to fulfil their obligation to facilitate access to a lawyer by, for example, providing a list of lawyers, or the name of a lawyer on duty in the issuing state. It is not certain whether the obligation of the issuing state will be triggered if the issuing state is bound by Directive, but the executing state (e.g. the United Kingdom) is not.

It must be noted however, that there are no provisions in the Access to a Lawyer Directive regarding legal aid, which has been expressly left as a matter of domestic law and policy, according to Recital 48. Given that many Member States only have limited provisions for access to legal aid before the defendant’s first court appearance, this could mean that a requested person’s ability to access legal representation in the issuing state prior to extradition could be significantly undermined.

There is a proposed directive on legal aid[2] that is currently being negotiated (as of July 2016). The current draft of the proposed directive includes provisions for legal aid in the issuing state, for the purpose of ensuring that the requested person is able to exercise his right to access legal assistance as defined in the Access to a Lawyer Directive. This training will be updated as and when this directive is adopted.

[1] Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty

[2] Proposal for a Directive of the European Parliament and of the Council on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings

Module 5: European Supervision Order

Module 5: European Supervision Order

This module introduces the European Supervision Order (‘ESO’), an important tool for practitioners representing non-resident defendants at the pre-trial stage. The ESO allows pre-trial supervision measures imposed in one Member State to be supervised by another Member State.

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (the ESO Framework Decision) came into force on 1 December 2012. The ESO Framework Decision establishes a system whereby the decision of a judicial authority in one Member State, imposing supervision measures on a non-resident defendant as an alternative to pre-trial detention, can be forwarded to the defendant’s state of residence, which then has to recognise the decision and supervise the defendant itself.

This module provides an overview of the key provisions of this legislation, and addresses a few legal issues that could arise, with reference to the case-law of the European Court of Human Rights and the Court of Justice of the European Union.


Introduction

 

All too often, criminal courts order the detention of non-residents because they presume them to be a flight risk, or, if they release them, require them to stay in the trial state because they do not have the confidence that they can be adequately supervised at home. The ESO Framework Decision attempts to provide an answer to these problems, allowing the court to rely on the authorities of other Member States to supervise the defendant, thus removing one of the main avoidable causes of detention of non-residents.

 


The problem

The ESO Framework Decision responds to a well-documented problem of non-resident defendants being at a comparative disadvantage vis-à-vis residents at the pre-trial stage. In the Explanatory Memorandum which accompanied the original proposal (COM(2006) 468 final) for the ESO Framework Decision, the Commission summarised the problem in the following way:

At present … EU citizens, who are not residents in the territory of the Member State where they are suspected of having committed a criminal offence are sometimes – mainly owing to the lack of community ties and the risk of flight – kept in pre-trial detention or perhaps subject to a long-term non-custodial supervision measure in a (for them) foreign environment. A suspect who is resident in the country where he or she is suspected of having committed an offence would in a similar situation often benefit from a less coercive supervision measure, such as reporting to the police or travel prohibition” (page 2).

The Commission went on to note the ‘vulnerable’ position of the non-resident defendant, as opposed to someone normally resident in the country:

Apart from being more or less cut off from contacts with family and friends, there is a clear risk that a non-resident suspect in such a situation could lose his or her job as a coercive measure (e.g. travel prohibition) that the judicial authority of the trial State has imposed on the suspect would stop this person from going back to his or her country of normal residence” (page 2).

The Commission continued:

The problem is that the different alternatives to pre-trial detention and other pretrial supervision measures (e.g. reporting to the police) cannot presently be transposed or transferred across borders as States do not recognise foreign judicial decisions in these matters” (page 2).

Thus, the ESO Framework Decision was designed to address, primarily, (i) the situation where a non-resident defendant is kept in detention pending trial because the court finds that there is a flight risk, often because the defendant has no community ties to the trial state; but also (ii) the situation where a non-resident defendant is granted temporary release but cannot leave the trial state, meaning prolonged separation from his/her state of residence.

Both situations have considerable human impact: the defendant may lose his/her job; contact with family and friends will be restricted significantly; and if the defendant is detained, this will of itself have deleterious effects on his/her physical and mental health. The trial state also has to bear the financial cost of detaining the person.


The solution

The solution agreed upon by the Member States is the ESO Framework Decision, which establishes a uniform system whereby the court of the trial state can forward a decision on supervision measures and forward it to the state of residence, whose authorities are then required to recognise the decision and supervise the defendant on the territory of the state of residence.

This should, in theory, provide an effective alternative to pre-trial detention. The defendant will be supervised by the authorities of the state of residence, so the authorities in the trial state need not impose a condition requiring them to stay in the trial state.

It is impossible to predict at the time of writing this Guide exactly how the procedure of applying for an ESO will work, and this is likely to vary between Member States. We are keen to hear from you about how things are working in practice, so please let us know how you get on.


Key provisions

What kind of measure is the ESO Framework Decision?

The ESO Framework Decision is a ‘mutual recognition’ instrument. The trial state ‘issues’ the ESO, and another state is required to ‘execute’ it. In this procedural guide we refer to the issuing state as the trial state, and the executing state as the state of residence, since this will normally be accurate (but see the comments on Article 9(2) below).

What is a European Supervision Order?

Article 4(a) of the ESO Framework Decision refers to a ‘decision on supervision measures issued as an alternative to provisional detention’, and the ESO Framework Decision establishes the system whereby that decision is forwarded to and recognised by another Member State.

Effectively, an ‘ESO’ as we refer to in this document exists wherever a national decision on supervision measures is forwarded to another Member State in accordance with the ESO Framework Decision.

Which authorities can issue an ESO?

Under Article 6 of the Framework Decision, Member States have to designate the judicial authority / authorities competent to issue and enforce ESOs, by notifying the Council of the EU.

When can an ESO be issued?

Article 1 provides that the ESO Framework Decision applies to supervision measures issued as an alternative to ‘provisional’ detention, and under Article 2(1)(a), its purpose is to ‘ensure the due course of justice, and in particular, that the person will be available to stand trial’. Clearly, the ESO Framework Decision covers supervision measures issued prior to trial.

Note the Probation Decisions Framework Decision[1] covers mutual recognition of noncustodial sanctions involving supervision obligations after a ‘final decision’ establishing the guilt of an offender. It is therefore reasonable to assume that the ESO Framework Decision does not cover supervision obligations imposed after final conviction. It is not clear whether states will accept that the ESO Framework Decision also covers supervision measures imposed after acquittal / conviction but prior to the determination of an appeal. This may depend on whether, under the national law of the trial state, the acquittal / conviction becomes final only after the determination of any appeals.

What sort of supervision measures are covered by the ESO?

Article 8(1) of the Framework Decision lists the core supervision measures which can always be the subject of an ESO:

  • An obligation to inform the authorities of a change of residence
  • An obligation not to enter certain places (in either Member State)
  • An obligation to remain at a specified place (with possible curfew requirements)
  • An obligation regarding leaving the territory of the executing Member State
  • An obligation to report at specific times to a specific authority
  • An obligation to avoid contact with specific persons

Article 8(2) of the Framework Decision lists several other supervision measures which Member States can accept, or decline, to supervise:

  • Restrictions on professional activity
  • Obligation not to drive a vehicle
  • Financial security
  • Addiction treatment
  • Avoiding contact with specific objects, which perhaps refers to computers in hightech crime cases.

Member States do not have the option of accepting or declining to supervise each kind of measure on an ad-hoc basis. Instead they notify the Council on a one-off basis which measures they will, and which they will not supervise.

An ESO can include any of the measures contained in Article 8(1), but only such measures as have been accepted by the executing Member State under Article 8(2). The Council of the EU is to make this information to all Member States, but it is worth ensuring the authority in your country has checked this before issuing an ESO, to avoid unnecessary complications.

Is the court required to issue an ESO?

Article 2(2) of the Framework Decision specifies that it does not confer a ‘right’ on a person to the use, in criminal proceedings, of a non-custodial measure as an alternative to custody. This is governed by the national law of the trial state. However, see the section later in this paper on what to do if courts refuse to entertain using the ESO.

How does the process work?

Under Article 10, the issuing authority forwards a decision on supervision measures complete with a certificate, in the standard form provided in the Annex I to the Framework Decision. The Annex contains a series of tick-boxes detailing the types of measures imposed, an estimate of the time they will last, and other details. Article 22(1)(a) foresees a certain amount of dialogue between the authorities in preparing the ESO. The ESO is then forwarded to another Member State.

Which Member State can an ESO be sent to?

Under Article 9(1) of the Framework Decision, an ESO can be forwarded to the competent authority of the Member State in which the person is ‘lawfully and ordinarily residing’ – that is, the state of residence – where the person consents. No definition of this concept is offered, and Member States’ laws may implement it in different ways.

Alternatively, under Article 9(2) of the Framework Decision, at the defendant’s request an ESO can be forwarded to the competent authority of a Member State other than that in which s/he ordinarily resides. In these cases, the consent of that authority is required.

Note that neither Article 9 nor other provisions of the ESO Framework Decision rule out the possibility of forwarding an ESO to more than one state.

Can the state refuse to recognise the ESO?

Under Article 12(1) of the Framework Decision, the competent authority in the state of residence shall, as soon as possible and within 20 working days, recognise the decision on supervision measures and without delay take all necessary measures to monitor the supervision measures – unless one of the ‘grounds for non-recognition’ apply.

When can a state refuse an ESO?

Article 15 defines eight circumstances in which the state of residence executing Member State can refuse to recognise the ESO. The main ones are:

  • Where the certificate is incomplete or obviously does not correspond to the decision on supervision measures;
  • Where the state considers that it is not the state of ‘lawful and ordinary residence’ within the meaning of Article 9(1), or does not consent to the ESO in Article 9(2) cases;
  • Where the supervision measure included in the ESO is one which it has not accepted to supervise under Article 8(1);
  • Where recognition would contravene the ne bis in idem rule (that is, where the state of residence considers that the defendant has already been finally acquitted / convicted in respect of the same acts as those forming the basis for the proceedings in the trial state. As to the meaning of this concept, see the case-law listed in the resources section of this Guide); and
  • Where the supervision decision relates to acts which would not constitute a criminal offence in the executing Member State (except for 32 categories of offence, which match those listed in the EAW Framework Decision).

What happens if the defendant breaches the supervision measures?

Under Article 19(3), the authority of the executing state must immediately notify the authority of the issuing state of any breach of a supervision measure. Annex II of the ESO Framework Decision includes a standard form for this purpose.

The issuing authority will then decide the consequences: under Article 18(1), the authority in the issuing state remains competent at all times to take subsequent decisions relating to the first decision on supervision measures, in accordance with its national law and procedures.

If, under its national law, the issuing Member State must hear the defendant before varying the supervision measures or issuing an arrest warrant, Article 19(4) provides that available instruments for telephone and video conferencing may be used.

What role do defence lawyers play in breach proceedings?

The ESO Framework Decision does not lay down any clear rules on this point, but competence for taking subsequent decisions remains with the issuing state (Article 18). It will take these decisions in accordance with national law, which means there may be scope for defence lawyers to make representations to the competent authority according to national procedure.

Make sure your client knows to contact you immediately if s/he fails to comply with a supervision measure, so you can anticipate the report to be forwarded under Article 19(3) and ask to exercise any right to be heard available under national law before the issuing authority takes a subsequent decision.

Your client may wish to consider retaining the services of a lawyer in the executing Member State, who may be in a better position to obtain evidence in the event of an alleged breach (police reporting records, for instance).

How is the return of the person to the trial state ensured?

The assumption is that the defendant will voluntarily attend court dates in the issuing Member State. However, if a breach of supervision measures leads to the issuing of an arrest warrant, Article 21 provides that the defendant is to be surrendered in accordance with the EAW Framework Decision.

Usually, a European Arrest Warrant can only be issued for the surrender of someone wanted to stand trial if the maximum penalty is at least two years’ imprisonment. In ESO cases, this threshold requirement is not to apply, in principle. However, Member States can decide – on a one-off basis – that they will apply the minimum sentence threshold.

In effect, this would prevent defendants facing allegations of minor crimes from being surrendered back to the trial state, which would presumably make the trial state to use an ESO in the first place. Given that allegations carrying lesser sentences are the cases where alternatives to detention are more likely to be used, Member States’ decisions on this subject will be quite important.

[1] 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, p. 102–122.

 

Key legal issues

What if courts refuse to consider using an ESO?

The ESO Framework Decision, at Article 2(2), makes it clear that it does not create a right to the use of supervision in lieu of detention. It is quite possible that courts will not change their decision-making at all once the ESO is available. However, under the ECHR, courts are required to have regard to the possibility of using an ESO.

  • Ambruszkiewicz v. Poland:[1] “the detention of an individual is such a serious measure that it is only justified where other, less stringent measures have been considered and found to be insufficient to safeguard the individual or the public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law, it must also be necessary in the circumstances” (paragraph 31). Applying the test, the Court found that the failure to consider release subject to financial security and police surveillance meant that the detention was not in accordance with Article 5(1).

The Court has described this principle as a ‘proportionality requirement’ embodied in Article 5 § 1 (c) (in Ladent v. Poland[2]), stating again that ‘domestic authorities should always consider the application of other, less stringent, measures than detention’.[3] In effect, under Article 5 ECHR, the onus is on the authorities to use less stringent alternatives unless all the circumstances justify detention.

One alternative, of course, is to release the defendant within the trial state subject to supervision measures. Courts cannot simply assume that because the defendant is a non-resident, s/he is a flight risk and only detention will suffice to guarantee their attendance at trial. The ECtHR has repeatedly held that ‘the mere absence of a fixed residence does not give rise to a danger of flight’ (see Suloaja v. Estonia[4]), insisting that courts have to assess the risk of absconding ‘in light of the factors relating to the person’s character, his morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted’ (see Ignatenco v. Moldova[5]). But the court cannot stop there. Indeed, the whole point of the ESO Framework Decision is to make this assessment unnecessary.

The ESO Framework Decision provides national courts with a further option. It allows the court to consider whether supervision measures would suffice to guarantee the defendant’s attendance at trial if monitored in the state of residence, where the defendant will have social, family and employment ties, and where they are likely to be much more effective. Courts must consider this further possibility. Detention is a measure of last resort which can be justified ‘only when all the other available alternatives are found to be insufficient[6]. The court’s duty to consider alternatives is therefore not complete until it has considered whether supervision measures – if enforced in the state of residence by means of an ESO – would guarantee the defendant’s attendance at trial.

This applies even if the offence charged is a serious one and detention is ordered on a first occasion. The authorities remain under an ongoing duty to explain why less stringent alternatives cannot be used, particularly after an extended period of detention (see, to that effect, Darvas v. Hungary[7]). Again, since the ESO renders conditional liberty a more effective alternative, it must also be borne in mind by any court reviewing ongoing detention as the prosecution progresses (or fails to).

Finally, note that the ESO Framework Decision requires the authorities of each country to consult each other in preparing the ESO (see Article 22(1)(a)). Your client may be detained while this process goes on. In this case, you should argue that, just as they are under a duty to prosecute with ‘special diligence’ where someone is detained, authorities must use this facility proactively and diligently, ex officio, in order to minimise detention of a person presumed innocent.

What if my country has not implemented the ESO?

The ESO Framework Decision sets up a system which depends on the Member States adopting laws to implement it. Unlike a directive, it is incapable of giving rise to rights which can be relied on directly in national courts.

If there are no national laws to give effect to the ESO Framework Decision, your options are limited. Since 1 December 2014, the European Commission has had the power to bring infringement proceedings against Member States for failure to implement framework decisions, but this does not represent a solution for individual clients.

However, even if your country has taken no steps to implement the ESO Framework Decision, you may still be able to help your client, relying on the Pupino[8] decision of the Court of Justice of the European Union (‘CJEU’) to require your national courts to interpret existing laws in line with the ESO Framework Decision.

  • In Pupino, an Italian schoolteacher was accused of using violent disciplinary measures. The prosecutor asked for the evidence taken from the alleged victims (minors) at the preliminary stage to be proved at the trial without cross-examination. A ‘special enquiry procedure’ allowed this, but this procedure was reserved for sexual offences cases. The CJEU held that the Victims Framework Decision, which entitles vulnerable witnesses to give evidence in favourable conditions, required the Italian court to consider making this procedure available to the complainants, notwithstanding its exclusion under the letter of national law. National courts had to interpret national law ‘as far as possible in light of the wording and purpose of the framework decision, in order to attain the objectives which it pursues’ (paragraph 43), though national courts could not be required to go so far as to interpret national contra legem (paragraph 47).

This ‘duty of conforming interpretation’ places courts under an obligation to look at the entire corpus of national law (not just implementing laws) to see whether it can, taken as a whole, receive an interpretation which achieves the objective of the framework decision.

This applies even in the absence of legislation specifically implementing the framework decision. In Pupino itself, and in a series of other cases on the Victims Framework Decision, the CJEU considered provisions of national criminal codes which either pre-dated the framework decision or were not intended to implement it, and still held that the Pupino principle applied (see Katz,[9]Gueye and Sanchez,[10] and X[11]).

So if there are laws in your country which concern enforcement of foreign supervision measures, then, even if these were not designed to implement the ESO Framework Decision, you can argue that they should be read in such a way as to give effect to it. Laws enabling enforcement of foreign post-conviction probation decisions, for instance, could be read as applying to pre-trial supervision measures forwarded under the ESO. However, bearing in mind that the Pupino rule cannot lead to an interpretation of national law which is contrary to its clear meaning, you should keep your expectations realistic.[12]

What if my country has passed implementing laws, but the ESO is difficult to use in practice?

If national laws have been passed but it is difficult for non-resident defendants to obtain an ESO in practice, the first step may be to engage in reasonable dialogue with prosecutors and judges to see if you can get them to adopt a more relaxed approach. But if the problem arises from a rule of national implementing law, again, you can try relying on the Pupino approach to overcome the problem. For example:

  • Case C-42/11 Lopes De Silva Jorge [2012] ECR I-0000 concerned Article 4(6) of the EAW Framework Decision, which enables Member States to refuse execution of a conviction EAW if they undertake to have the offender serve the sentence on their territory. The provision applies to nationals and those ‘staying in or resident of’ the country concerned. French law reserves this option to its own nationals exclusively. The Court, reaffirming the Pupino principle, suggested that the French court could interpret the whole body of national laws and principles in such a way as to assimilate those with a strong connection to France resulting from social and economic ties, to nationals of France (see paragraphs 56-58), effectively shaping national law to achieve the purpose of Article 4(6), which clearly intended to cover more than nationals alone.

It is not possible to predict what sort of problems will arise with national implementing laws, and how exactly you might address them.

However, here are some possibilities:

  • Lawful and ordinary residence’ (Article 9(1)): suppose national law requires you to prove the state of residence by formal documents (residence permits, employment working contract, tax documents etc). You could argue that, since the purpose of Article 9(1) is to identify the state where the defendant has social and economic ties, authorities should be able to consider objective factors such as family relationships, effective place of work, EU residence rights etc, in order to ensure that the ESO Framework Decision’s objective is achieved.
  • Adaptation / variation of measures (Articles 13 / 18): suppose that, acting in the executing state, you apply for the day and time of reporting to a police station to be changed, but the authority refuses, claiming that only the issuing authority is competent to ‘modify’ supervision measures. A first solution would be to encourage the authorities to discuss the matter (as foreseen by Article 22(1)(b)), but you might also wish to argue that the executing authority’s competence to ‘adapt’ measures forwarded to it entitles it to change reporting times in order to enforce the measure effectively (this being implicit in a scheme relying on trust between judicial authorities).

Domestic rules of interpretation, applicable to national laws implementing international law obligations, may also be of assistance.

[1] App. no. 38797/03 (4 May 2006)

[2] App. no. 11036/03 (18 March 2008), paragraph 55

[3] At paragraph 56

[4] App. no. 55939/00 (15 February 2005), paragraph 64. Mr Suloaja lacked a fixed address, but still resided in Estonia. The principle is however to be understood more broadly in the sense that the defendant’s residence status cannot of itself show a flight risk (see Goroshchenya v. Russia App. no. 38711/03 (22 April 2010), paragraph 86).

[5] App. no. 36988/07 (8 February 2011), paragraph 80

[6] Lelièvre v. Belgium App. no. 11287/03 (8 November 2007), paragraph 97 (‘lorsque toutes les autres options disponibles s’avèrent insuffisantes’)

[7] App. no. 19574/07 (11 January 2011), paragraph 27

[8] Criminal Proceedings against Maria PupinoC-105/03

[9] Gyorgy Katz v. Istvan Roland SosCase C-404/07

[10] Criminal Proceedings against Magatta Gueye and Valentin Salmeron Sanchez, Joined Cases C-483/09 and C- 1/10

[11] Criminal Proceedings against X, Case C-507/10

[12] In the UK, there is no scope to rely on Pupino at all, following a decision by the Supreme Court in Assange v the Swedish Prosecution Authority [2012] UKSC 22

Module 6: The role of the Court of Justice of the European Union (CJEU)

All EU laws on criminal justice matters, including the EAW Framework Decision and the ESO Framework Decision, can be interpreted by the Court of Justice of the European Union (CJEU). The Court’s rulings can therefore be the difference between someone being surrendered or not, or between spending two years on bail in another country and being allowed to return home pending trial. Its rulings will affect not just the case in which they arise, but many others after it, in all 28 Member States of the EU.

There is further information about the CJEU and its procedural rules on Fair Trials’ training module on the CJEU.[1] This training module includes information about the procedure for making a reference for a preliminary ruling, under which national courts can refer questions to the CJEU on the interpretation of EU law, and stay proceedings until such time that the CJEU has made a ‘ruling’ on the issue.

Until 1 December 2014, the courts of the Member States did not have jurisdiction to refer questions to the Court unless the Member State in question had ‘accepted’ its jurisdiction by a declaration, which means that it was only possible for references under the preliminary ruling procedure on the framework decisions to be made from certain countries.  The CJEU’s involvement in areas governed by framework decisions has also been limited because it has not been possible for the Commission to bring actions against the Member States for failure to fulfil their obligations under framework decisions.

These restrictions existed under the old Treaty on the European Union, but they ceased to exist when the Treaty of Lisbon entered into force on 1 December 2009. The legal effects of the instruments adopted under those provisions were preserved for five years, that is, until 1 December 2014. Since December 2014, the courts or tribunals of any Member State have be able to make references to the CJEU on the interpretation of framework decisions, and the Commission has been able to bring infringement proceedings against countries that have not implemented framework decisions properly.


Watch our video featuring LEAP member Alex Tinsley, who outlines the ways in which the CJEU has interpreted EU law. He describes how this has affected the application of EU laws on criminal justice in general and the European Arrest Warrant in particular.

Possible questions for the CJEU

Practitioners have identified that there are discrepancies between Member States on the question of the extent to which fundamental rights could be a basis on which EAWs can be refused. For example, whereas English legislation provides that fundamental rights can be a basis for challenging surrender, this ground does not exist explicitly in the laws of certain other Member States, and there are differing approaches taken by courts.

The question of how the EAW Framework Decision should be interpreted in cases where the prison conditions of the issuing state are such that they could violate the fundamental rights of the requested was addressed in the CJEU’s judgment in the Aranyosi[2] case. However, there could still be room for the CJEU to provide further interpretative guidance in cases where Article 6 or 8 ECHR based challenges are made. In particular, with the gradual adoption and transposition of EU laws on fair trial rights, the CJEU you could be called on to clarify the extent to which the failure to implement these laws properly in an issuing state form the basis of a refusal of the EAW. In June 2014, there was a meeting of LEAP[3] in which possible questions for the CJEU about the interpretation of the EAW Framework Decision were identified by lawyers, NGO representatives, and academics from across the European Union.[4]

[1] Fair Trials, A Guide to Court of the European Union

[2] Pál Aranyosi and Robert Căldăraru v. Generalstaatsanwaltschaft Bremen Joined Cases Joined Cases C-404/15 and C-659/15 PPU

[3] LEAP is an EU-wide network of criminal defence experts, co-ordinated by Fair Trials

[4] The report from this meeting can be downloaded from Fair Trials’ website

Module 7: Summary and Final Quiz

You’ve now reached the end of the course. Here, Fair Trials’ Legal and Policy Officer Bruno Min talks you through some of the key learning from the previous modules.

Below you will find a short test of the material covered so that you can evaluate what you have learned. The correct answers will be available for you to see immediately.  We recommend that you take the time to go over them in full so that you can see where mistakes may have been made and understand what the correct answers should have been.

 

Module 1: Introduction

The excessive use of pre-trial detention is becoming a growing area of concern. Regional human rights standards set the parameters of when pre-trial detention is justified and recent legal changes have given practitioners a right to the information they need to challenge detention on remand.

This course will highlight the important role lawyers can play in the decision-making process on pre-trial detention. It will provide an overview of international standards and show how this can be used in practice in day-to-day cases.

This training was developed in conjunction with Fair Trials’ Legal Experts Advisory Panel (LEAP) with the financial support of the Justice Programme of the European Commission.

Unit 1: Aims and Objectives of Training

Introduction

Pre-trial detention is the detention of a criminal suspect or defendant in police or prison custody during criminal proceedings, before there has been any determination as to guilt or innocence. Pre-trial detention is treated as a permissible restriction on the right to liberty when used for specific purposes – to ensure that justice is served, that evidence and witnesses are protected, and that suspects do not escape prosecution. Yet depriving people of their liberty when they have not been convicted of any crime must be an exceptional measure, only to be used where absolutely necessary.

International and regional standards protect the principle that detention should be a measure of last resort, imposed only for strictly limited purposes and periods of time. However, these standards are not always respected in practice. Fair Trials has coordinated research into the practice of pre-trial detention in ten EU Member States. This research demonstrated that in practice, pre-trial detention is often imposed on the basis of poor quality reasoning, sometimes for unlawful reasons, and is extended for lengthy periods without sufficient justification, while alternatives to detention are not sufficiently considered. The research also established that prosecutors, judges and lawyers are not always well-informed as to the content of international standards and the way in which these standards should operate in practice.

In this training module, Fair Trials aims to help practitioners to improve their understanding of the international and regional standards which should guide national practice in relation to pre-trial detention decision-making. It also aims to introduce practitioners to the range of alternatives to detention available and the reasons why they may not be used as frequently as they ought to.


Aims and Objectives

The main aims and objectives of this training module are as follows:

  • To help practitioners to understand the context for the training, including the impact of pre-trial detention on the enjoyment of the right to a fair trial, prison conditions, and on EU mutual recognition;
  • To present an overview of international and European regional standards in relation to pre-trial detention, with a particular focus on the case law of the European Court of Human Rights and European Union standards;
  • To analyse specific issues related to pre-trial detention in that arise in practicean overview of alternatives to pre-trial detention, including the challenges and opportunities they present in practice.
  • To provide guidance to lawyers who are (a) representing clients in pre-trial detention hearings, and/or (b) challenging surrender of requested persons pursuant to an EAW based on issues relating to pre-trial detention decision-making and/or prison conditions.

Unit 2: Key Concepts

Pre-trial detention: Pre-trial detention refers to the period of detention of a person on reasonable suspicion that they have committed an offence, prior to the determination as to that person’s guilt or innocence by a tribunal. This training will focus exclusively on the time period between the first appearance of a suspect before a judicial authority, and the first determination of guilt or innocence. Pre-charge or police detention will not be treated here, nor will detention specifically authorised in the context of anti-terror or immigration provisions.

Initial hearing: This term refers to the first time a suspect is brought before a judge or other judicial authority in relation to criminal investigation or prosecution, at which a decision about whether the suspect will be detained or released pre-trial is taken.

Appeal: In the context of pre-trial detention, “appeal” refers to the ability of a suspect to challenge the imposition or decision to extend pre-trial detention.

Review: In order to remain lawful, authorities must review pre-trial detention periodically to ensure that the reasons justifying its use remain relevant.

Special diligence: This term refers to the obligation on prosecuting authorities to progress investigations and prosecutions against detained individuals with particular efficiency to avoid unnecessarily lengthy periods of pre-trial detention.

Case-file: In this context, the case-file refers to the evidence collected by prosecuting or investigating authorities in relation to criminal proceedings. In some countries, there is an actual physical (paper or electronic) file containing all of the evidence and documentation. In others, the physical case-file might be quite basic but evidence referred to in the proceedings can be examined in other ways.

Non-national: Pre-trial detention affects people who are foreign residents in different ways to those who are citizens of the country in which they are being prosecuted.

Alternatives to Detention: Alternatives to detention refer to any conditions placed on the liberty of suspects and defendants prior to a finding of guilt or innocence. These may include (but are not limited to) home detention, electronic monitoring, check-ins with police or other authorities, travel and geographic bans, restraining orders from victims and witneses, drug treatment, the maintenance of a fixed address or employment, etc.

Plea bargaining: When a defendant agrees to accept responsibility and enter a plea of guilty for a criminal accusation in exchange for some benefit from the state, usually a reduction in charge and/or sentence.

Module 2: The Context

The excessive and unjustified use of pre-trial detention is a global phenomenon with serious consequences for a spectrum of human rights concerns including arbitrary deprivation of liberty, torture, the right to information and transparency, and the right to a fair trial. Decisions on pre-trial detention come at a crucial juncture in criminal procedure post-arrest, and impact on the entirety of the process in ways to which criminal lawyers must be alert.

In addition to procedural rights concerns, the excessive use of pre-trial detention is a driver of prison overcrowding and related poor conditions that may violate the rights of detainees to be free from torture, inhuman or degrading treatment. In the context of the EU, poor detention conditions undermine the mutual trust that underpins mutual recognition in criminal proceedings, with acute consequences particularly for the operation of the European Arrest Warrant (EAW). Violations of the European Convention on Human Rights in relation to Article 3 (freedom from torture) as well as Article 5 (right to liberty) in requesting states can potentially give rise to successful defences to surrender in EAW cases. For this reason, extradition lawyers across the EU must be aware of international standards of pre-trial detention, and the status of their protection in different EU member states, in order to anticipate and develop appropriate human-rights based defences to surrender.

Unit 1: Pre-trial detention and the right to a fair trial

How does pre-trial detention relate to the right to a fair trial?        

Excessive or unjustified pre-trial detention obviously infringes the right to liberty, but it can also impact on the enjoyment of the right to a fair trial, aspects of which are now protected by EU law by a series of measures protecting procedural rights of suspects and defendants in criminal proceedings (the Roadmap Directives). People who are held in pre-trial detention may face more difficulties in effectively participating in their own defence. They may have a harder time communicating with their lawyer, examining the evidence against them and gathering evidence to use in their defence. People in pre-trial detention are sometimes held in facilities far from families and other support systems, which can negatively impact their mental health and ability to understand and to contribute effectively to the proceedings.

Furthermore, being held in pre-trial detention has obvious implications for the presumption of innocence. Studies conducted in the United States have demonstrated that defendants detained prior to trial plead guilty more often, are convicted more often, and are more likely to be sentenced to prison than are similarly situated defendants who are released prior to trial. The EU has recognised the importance of improving protections for the presumption of innocence by adopting a Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial (the Presumption of Innocence Directive) as part of the Roadmap Directives.   Though the Presumption of Innocence Directive does not deal directly with pre-trial detention, it does provide guidance on issues that may impact on pre-trial detention process, including prohibiting the presentation of the accused in courts in such a way that may suggest guilt; for example, by placing them in “the dock,” in handcuffs, or in a prison uniform. Lawyers should make particular use of these provisions for clients detained pre-trial, who will be at greater risk of presumptions of guilt.

In addition to the practical impacts of pre-trial detention on the ability of suspects and defendants to obtain a fair trial, the procedural guarantees that make up the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) also apply in large part to proceedings related to the pre-trial period. (See, i.e. Vera Fernández-Huidobro v. Spain, App No 74181/01 paras 108-114; Kamasinski v. Austria, App 9783/82 para 74 ; Hermi v. Italy, App No 18114/02 para 70).


a. Access to a Lawyer: Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings (the Access to a Lawyer Directive) states in Article 3(1) that “suspects and defendants have the right to be represented by a lawyer in such time and in such a manner that they are able to exercise their rights of defence practically and effectively.” This right applies, inter alia, fully “where the suspect or accused person is deprived of liberty, irrespective of the stage of criminal proceedings.” (Article 2(b)). The Access to a Lawyer Directive makes clear that access to a lawyer must occur at key junctures germane to pre-trial detention proceedings, e.g. before suspects are questioned by a judicial authority (Article 3(b), “without undue delay after deprivation of liberty” (Article 3(c)) and in “due time” before any court appearance (Article 3(d)).

However in practice, many suspects find it impossible to obtain this kind of timely and meaningful access to a lawyer given the time constraints on proceedings at the early stage in a criminal prosecution. Due to variations in legal regimes and the complexities of securing legal aid appointments, defendants at times face judicial authorities in initial hearings on pre-trial detention without the assistance of a lawyer.

Even where they are present, lawyers (particularly in legal aid cases where resource constraints are particularly acute) do not always provide a sufficient level of representation to safeguard the rights of the defendant.  Fair Trials’ research has demonstrated that, because defendants must be brought before judicial authorities promptly, and due to the resource constraints on courts and lawyers, defendants often have only minutes to consult with lawyers before an initial hearing, leaving defence lawyers unable to gather the necessary information to adequately defend suspects from detention.

Furthermore, the research has demonstrated that judges do not always observe equality of arms. In many EU Member States, Fair Trials’ research has established that judges overwhelmingly refer to and agree with prosecutorial submissions in decisions to detain suspects, only rarely making reference to defence submissions.


b. Access to EvidenceDirective 2012/13/EU of the European Parliament and the Council of 22 May 2012 on the right to information in criminal proceedings (the Right to Information Directive) also codifies and strengthens criminal procedural rights in ways that impact on pre-trial detention proceedings. In particular, it clarifies the right of a defendant to access the evidence against them. In the context of pre-trial detention, the Right to Information Directive states in Article 7(1) that “where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.”

Unfortunately, access to the evidence is not always sufficient to safeguard the defence in the pre-trial detention context. In some jurisdictions, there are formal legal limitations on such access; for example because prosecutors have wide discretion to decide what materials to make available. This exercise of discretion is contrary to Article 7 of the Right to Information Directive, which permits some derogations from the general right of access to “all material evidence in possession of the competent authorities,” (Article 7.2), but does not permit any derogations against the right of access to case materials essential to challenging effectively the lawfulness of arrest or detention described in Article 7.1. There are also practical problems with the form of access to the case file – in some places, for example, there is a single paper case file that can only be viewed by one party (prosecutor, judge or defender) at a time. In other scenarios, case materials are provided electronically, which means that defendants in detention cannot easily view them. Finally, even where access to materials is granted, given the compressed timescale of the first hearing and the demanding caseload of many courts, lawyers and defendants frequently have only a few minutes to view them.


c. Interpretation and Translation: Directive 2010/64/EU of the European Parliament and of the Council of 20 December 2010 on the right to interpretation and translation in criminal proceedings (the Interpretation and Translation Directive) is designed to allow criminal suspects who are not fluent in the local language to participate effectively in the proceedings. Fair Trials’ research has demonstrated that foreign nationals are at particular and disproportionate risk of being ordered into pre-trial detention. This may be due to a perception on the part of authorities that foreign nationals are at greater risk of fleeing than other defendants. Linguistic minorities also face particular difficulties in accessing the other procedural rights that make up a fair trial due to their inability to fully understand and participate in proceedings. The Interpretation and Translation Directive aims to bring linguistic minorities onto a more level playing field by obliging Member States to provide both interpretation “of a quality sufficient to safeguard the fairness of the proceedings” (Article 2(1)) and translation of essential documents (Article 3). Defence lawyers should take special notice of Article 2(2), which provides that Member States should provide interpretation not only during “proceedings before investigative and judicial authorities” (Article 2(1)), but also “for communication between suspected or accused persons and their legal counsel in direct connection with any questioning or hearing during the proceedings or with the lodging of an appeal or other procedural applications.”


 d. Waivers of rights: Pre-trial detention can also place individuals under immense pressure to waive key fair trial rights, such as the right to silence, the right to a lawyer, to view and challenge evidence, and the right to a trial itself. In some cases, police and prosecutors may explicitly promise defendants that they will be released if they cooperate with authorities; in other cases detained defendants may be willing to make such waivers unilaterally in the hope that it will speed up the process and allow them to return home sooner.

Fair Trials is currently conducting research into guilty plea processes in 90 jurisdictions around the world. The research has highlighted the key role that plea bargaining can play in reducing lengthy pre-trial detention periods in cases where it is caused by court backlogs or other procedural inefficiencies. By waiving the right to a trial where guilt is not disputed, defendants and the state alike can benefit from quicker processing, shorter sentences and less time spent in prison overall. However, pre-trial detention can also function coercively, with even innocent defendants agreeing to plead guilty in order to obtain release.

Unit 2: Impact on Prison Conditions

How does pre-trial detention impact on prison conditions?

Pre-trial detention is a major driver of prison overpopulation around the world. In the EU, pre-trial detainees make up roughly a fifth (around 21%) of total prisoners, but the numbers and percentages vary widely at different times and in different countries.

Chart 1.png

Outside the EU, pre-trial detainees make up much larger proportions of prison populations, in some countries dwarfing the number of sentenced prisoners. According to the International Centre for Prison Studies (ICPS), pre-trial detainees “constitute more than 40% of the prison population in about half the countries of Africa and the Americas and in South Central Asia and Western Asia”. According to figures provided by the World Prison Brief, some of the countries with the highest proportion of pre-trial detainees include Liberia (83% as of 2013), DR Congo (73% as of 2015), Libya (90% as of April 2014), Bolivia (85.9% as of March 2014), Paraguay (79% as of September 2015), Haiti (70.9% as of 31 December 2015), Lebanon (66.2% as of 11 November 2014), and Bangladesh (73.8% as of February 2015).  

Overcrowding leads to a plethora of human rights abuses: staff may not be sufficient to prevent intra-prisoner violence, food and medical care may be insufficient and disease is easily spread in close quarters. Prisons often treat remand prisoners differently to sentenced ones – due to the often short and unpredictable time periods for which they are incarcerated and the perception among some authorities that pre-trial detainees present unique security risks (due to incentives to flee and lack of time in which to conduct risk assessments), which can mean that pre-trial detainees do not benefit from rehabilitative programs, recreation, and family visitation, and may find themselves locked in cells for 23 or 24 hours a day.


Number of pre-trial detainees per 100,000 residents:

Chart 2.png

 

report submitted by the UN Secretary-General relating to Human rights in the administration of justice analysing the international legal and institutional framework for the protection of all persons deprived of their liberty (Secretary-General’s Report) explained that overcrowding may lead to a violation of prisoners’ rights under Article 10 of the International Covenant on Civil and Political Rights (ICCPR), which states that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” The Secretary-General’s Report cites paragraph 3 of the Human Rights Committee’s (HRCGeneral Comment 21 on the Right of Everyone to take part in cultural life, which states that persons deprived of their liberty must not be “subjected to any hardship or constraint other than that resulting from the deprivation of liberty”. It also pointed to Rules 9-22 of the United Nations Standard Minimum Rules for the Treatment of Prisoners which provide guidelines for accommodation and living conditions for detainees.

The Secretary-General’s Report states that “[o]vercrowding inevitably has an adverse impact on conditions in places of deprivation of liberty, such as denial or lack of access to medical care, food, sanitation, security and rehabilitation services”  (Para 49). It also highlights the following issues:

  • Overcrowded cells develop an “offender subculture” which is “hard to control”;
  • “Detainees lack space for privacy”;
  • There is a greater risk of violence; and
  • It “seems to facilitate corruption in several ways, including payment for moving to less populated cells.”

In the EU, overcrowded conditions have been found by the European Court of Human Rights (ECtHR) to violate the Article 3 rights of detainees due to (inter alia) poor ventilation, lack of privacy when using lavatories, inadequate sleeping arrangements, insect infestation, and restrictions on showers and time spent outside of cells (Varga and Others v. HungaryApps. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, 10 March 2015). Poor detention conditions in the EU, driven by overcrowding which in many cases is exacerbated by the excessive use of pre-trial detention, has unique ramifications in the EU due to their impact on mutual recognition.


EU action on pre-trial detention

The EU has recognised the consequences of the human rights implications for mutual recognition of excessive and unjustified use of pre-trial detention by its Member States for at least seven years. The Commission’s 2009 Roadmap on procedural rights in criminal proceedings (the Roadmap) states that “[e]xcessively long periods of pre-trial detention are detrimental for the individual, can prejudice judicial cooperation between the Member States and do not represent the values for which the European Union stands.” This was followed by the Commission’s Green Paper on Detention (the Green Paper) published by the European Commission in 2011, which recognised that detention issues “come within the purview of the European Union as […] they are a relevant aspect of the rights that must be safeguarded in order to promote mutual trust” (Green Paper, p 2).  In response to the Green Paper, the European Parliament on 15 December 2011 adopted a cross-party resolution on detention conditions in the EU, which called for  legislative minimum standards on pre-trial detention.

The Parliament has also recognised the threat posed to mutual recognition by a failure of the EU to sufficiently safeguard fundamental rights in the pre-trial detention context in its review of the European Arrest Warrant (EAW) of 27 February 2014. The review highlighted both the risk of lengthy pre-trial detention (para 2) as a result of delays in investigation and prosecution and, as well as the impact of poor detention conditions exacerbated by excessive reliance on pre-trial detention (para 3). It went on to recommend that a human rights ground of refusal be introduced into the EAW Framework Decision (para 7(d)), as such a refusal ground is not explicit within the text of the Framework Decision.

FAIRTRIALS-3.jpgAndrew Symeou:

Andrew was a young British student recently returned from a holiday in Greece when he was arrested in relation to the death of another British tourist in Greece, a young man Andrew had never met. The only evidence inculpating Andrew were witness statements obtained through police abuse. Following a battle in the UK courts in which Andrew argued that his fundamental rights would be infringed if he were surrendered to Greece, the UK nonetheless ordered his surrender in June 2009. Upon arrival in Greece, Andrew spent ten months in pre-trial detention including six months in abysmal conditions in Korydallos Prison (which Amnesty International called one of the worst in Europe) as its youngest resident. He was later released from pre-trial detention and finally tried in March 2011. Andrew was acquitted in June 2011, more than four years after the events in question.


In recognition of the lack of an explicit human rights refusal ground in the EAW Framework Decision, some Member States have taken matters into their own hands in recognition of the way the EAW can operate to undermine fundamental rights, and have introduced their own national level reforms to the EAW. In the UK, for example, an amendment to the Extradition Act was adopted in direct response to Andrew Symeou’s case, with the aim of preventing individuals being held for lengthy periods of pre-trial detention following surrender. The amendment bars extradition where a case is not sufficiently advanced to prosecute speedily upon surrender. The fact that Member States feel it necessary to devise national solutions to the fundamental rights challenges arising through the operation of the EAW demonstrates that such rights are not sufficiently protected by existing EU instruments. This lack of trust in the EU instruments, resulting in variation in national practice, further undermines mutual recognition.

Unit 3: Detention Conditions

How have courts responded to poor detention conditions in requesting Member States?

In response to the challenges that the excessive use of pre-trial detention and resulting poor detention conditions present to mutual recognition, domestic courts have taken one of two courses of action: (1) they surrender individuals to poor detention conditions and/or lengthy pre-trial detention that risk infringing on the fundamental rights of the surrendered out of loyalty to the mutual recognition project; or (2) they refuse surrender. Both responses are problematic from the point of view of mutual recognition. When surrenders are delayed or blocked due to the risk of fundamental rights infringements in the requesting state, there is a clear impact on the operation of mutual recognition. However, it is equally problematic for surrenders to be carried out in these circumstances, as mutual recognition then operates to undermine fundamental rights protection, rather than to uphold it, in contravention of the EU’s foundational principles.

In practice, concerns in executing countries about poor detention conditions in requesting Member States have sometimes been resolved through the use of assurances as to the conditions in which particular suspects will be held post-extradition. In the UK for example, extradition courts have required assurances as to conditions in detention from ItalyHungaryRomaniaLithuaniaBulgaria and Greece. For example, an example assurance given by Greek authorities in relation to an EAW request considered in the UK in the case of Balaei Haris v Greece [2015] EWHC 3702 (Admin) included a promise that the requesting authorities would “consistently ensur[e] the adequate hygiene standards within the detention establishments and shall continuously provide the detainees with the necessary health and medical care, on a level equivalent to that enjoyed by the general population of the country” and that the requested people “will be accommodated in cells where they will have personal space in excess of 3 (three) metres not including space taken up by cell furniture. Further they will benefit from this assurance for the duration of their time of detention in Greece.”


However, reliance on assurances can also be problematic from the perspective of fundamental rights protection. Fair Trials is not aware of any national court or body which systematically monitors compliance with assurances (for example, to ensure that suspects are not moved to facilities with worse conditions than those promised in the assurance). The lack of systematic monitoring of assurances makes it impossible to know how often these are used, what the content of the assurances is, and whether they are complied with. The ECtHR has provided guidance on safeguards in the use of assurances in the case of Othman v. United Kingdom, but without sufficient monitoring, it is difficult to see how these are being respected in practice in the context of EAW cases. The factors the Court considers when assessing the quality of assurances are set out in para 189 as follows:

i. whether the terms of the assurances have been disclosed to the Court;

ii. whether the assurances are specific or are general and vague;

iii. who has given the assurances and whether that person can bind the receiving State;

iv. if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them;

v. whether the assurances concerns treatment which is legal or illegal in the receiving;

vi. whether they have been given by a Contracting State;

vii. the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances;

viii. whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers.


Aranyosi and Căldăraru cases

The impact of poor detention conditions on the functioning of the EAW and the role of assurances in protecting fundamental rights has recently come to a head. The Court of Justice of the European Union (CJEU) CJEU on 5th April issued its judgment in two cases from Germany, Aranyosi (C-404/15) and Căldăraru (C-659/15) in relation to EAWs from Hungary and Romania respectively, each of which raised concerns regarding detention conditions in those countries. The CJEU confirmed that Member States have a duty to respect the fundamental rights of requested people when considering EAWs. It made clear that Member States must conduct rigorous human rights enquiries prior to approving surrender, and to suspend surrender where there is a real risk that requested individuals would be subjected to conditions that infringe their fundamental rights (specifically, Article 4 of the EU Charter of Fundamental Rights which prohibits torture, inhuman or degrading treatment).

In practical terms, the judgment obliges judicial authorities to defer execution of an EAW until the requesting Member State has provided sufficient information to make clear whether, “in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment”(Araynosi, para 94). It further specifies that the executing authority must request of the issuing Member State “all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State” (ibid, para 95). If sufficient information is not forthcoming within a reasonable period of time, the judicial authority may decide to end surrender proceedings.

The kind of particularised information from requesting Member State that the decision envisages being provided is comparable to the assurances which some executing state judicial authorities have already required in cases raising issues relating to detention conditions. As such, the same set of concerns regarding assurances will continue to apply: lack of centralised, comprehensive, reliable, contemporaneous sources of information on detention conditions; lack of monitoring mechanisms to ensure enforcement of particular guarantees; and the insufficiency of case-by-case assurances as a durable solution to the persistent problem of prison conditions in the EU which require a systematic and regional approach to resolve.

While the recognition that mutual recognition must operate within a framework of respect for human rights is welcome in the absence of an explicit human rights ground of refusal in the text of the EAW Framework Decision, the need for reform of the EAW is made even clearer by this judgment.


PRACTITIONER NOTES:

The recent decision of the CJEU in the Aranyosi and Căldăraru cases offers support to practitioners seeking to challenge surrender pursuant to EAWs where potentially rights-infringing prison conditions await in the requesting state.

  • Lawyer should gather documentation as to the current state of conditions in the particular facility in which the requested person is likely to be held. Reports from the Committee for the Protection of Torture on the conditions of particular prisons around the EU in which pre-trial detainees are held, for example, are key sources of expertise, but will not in themselves be sufficient to discharge extradition in most courts. Reports of experts with contemporaneous knowledge of conditions as relevant to the particular circumstances of the requested person (taking into consideration, for example, any unique characteristics such as disability or ethnic minority status), or reports on the treatment of recently extradited individuals, may help support the case.
  • Comparative law can help support courts considering defences to surrender in EAW cases. Consider seeking out judgments from courts in other EU member states in which surrender was discharged due to human rights concerns in the same requesting country. For example, in a recent case in which Fair Trials assisted, case law from Germany refusing surrender to Greece on the basis of poor prison conditions helped to persuade a British court to discharge surrender on the same grounds.
  • Practitioners may also point to the unavailability of monitoring facilities for assurances in pushing back against a court too ready to accept an assurance from the requesting state as to the conditions in which the requested person will be held. Lawyers should share details of assurances provided and, where possible, the reality of the conditions in which surrendered individuals are actually held in order to ensure that assurances are as robust and reliable as possible. Such information sharing can take place through Fair Trials’ network of lawyers in the EU, the Legal Experts Advisory Panel (LEAP), which has an initiative to develop a case law database which would include information about fundamental rights refusals and assurances obtained.
  • Up to date knowledge of prison conditions locally may also be of use when making arguments regarding pre-trial conditions of accused people in purely domestic proceedings. Criminal judges may not always be aware of what conditions are like in nearby facilities, and such information could be useful in making arguments that pre-trial detention is disproportionate to the risk identified.

Module 3: The Law

International and Regional Standards

International and regional standards

A myriad of international and regional standards provide guidance on human rights protection in the context of pre-trial detention, covering issues including the lawful grounds for pre-trial detention, the timing of the first judicial appearance and the duration of pre-trial detention, the lawful justifications for pre-trial detention, procedural rights in criminal processes related to pre-trial detention, and standards of material conditions of detention. This module will introduce you to some of these.

Even where these standards are replicated in national law, Fair Trials’ research has demonstrated that local and domestic practice may not be compliant. Therefore it is important for practitioners to know about these standards in order to be able to identify gaps in compliance, and to consider ways in which international and regional standards may be better implemented domestically and locally.


I. International standards

a. Prohibition on arbitrary detention:

Safeguards against the excessive and unjustified use of pre-trial detention find their foundation in the fundamental legal prohibition of arbitrary detention found in Article 9 of the Universal Declaration of Human Rights (UDHR) and Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). Article 9(1) ICCPR states that “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” As interpreted in the UN Human Rights Committee (HRC)’s General Comment No. 35 (covering Article 9, Liberty and Security of person) “the notion of arbitrariness is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality” (para 12).


b. Pre-trial detention as a measure of last resort and lawful grounds of detention

International standards affirm the principle of pre-trial detention as a measure of last resort, appropriate and lawful only for limited purposes. The HRC has elaborated on the requirements of Article 9(1) of the ICCPR, stating that compliance with the provision requires any detention to be “reasonable” and “necessary”. It has also stated that, “[r]emand in custody must further be necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime” (Mukong v Cameroon, Communication No. 458/1991, UN Human Rights Committee (HRC), 21 July 1994, para. 9.8). Article 9(3) ICCPR asserts that it “shall not be the general rule that persons awaiting trial shall be detained in custody”.

According to the HRC, pre-trial detention may become arbitrary, and a violation of the right to liberty and the presumption of innocence if the duration is excessive, if it is set according to the length of the potential sentence, or if it is applied automatically (Concluding Observations, Italy, 24 April 2006, CCPR/C/ITA/CO/5, para. 14). It has also asserted that “bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the state party” (Hill v SpainCommunication No. 526/1993, 2 April 1997, para. 12.3). According to a training manual published by the UN, “[t]his is a logical protection in view both of the fact that everyone charged with a crime has the right to be presumed innocent until proved guilty and of the fact that deprivation of liberty must be an exceptional measure” (Professional Training Series No. 9: Human Rights in the Administration of Justice: A Manual for Human Rights for Judges, Prosecutors and Lawyers, 2003, HR/P/PT/9, p.190).

The United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules), similarly state that pre-trial detention must only be used as a “means of last resort” after considering any threat posed to “the investigation of the alleged offence” and “the protection of society and the victim”(Rule 6.1). Likewise, Article 5(1)(c) of the European Convention on Human Rights (ECHR) states that pre-trial detention is only necessary “when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”.

The HRC has furthermore made it clear that there will be a violation of Article 9 where pre-trial detention is used as “punitive” measure (De Morais v Angola, Communication No. 1128/2002, 18 April 2005, para. 6.1). It also cautions against courts’ reliance on stereotypical and discriminatory reasoning in imposing pre-trial detention, for example by stating that “the mere fact that the accused is a foreigner does not of itself imply that he may be held in detention pending trial” (Hill v Spain, para. 12.3).


c. Alternatives to detention

Alternatives to detention have been promoted by international and regional human rights bodies as a way to ensure that pre-trial detention remains a measure of last resort. Article 9(3) of the ICCPR generally promotes the use of alternatives to detention, stating that rather than detaining suspects as a “general rule”, authorities may release them but that “release may be subject to guarantees to appear for trial.” Rule 6(2) of the Tokyo Rules states that “[a]lternatives to pre-trial detention shall be employed at as early a stage as possible”.

International standards place particular emphasis on the use of alternatives to detention for juveniles. The UN Economic and Social Council’s Guidelines for Action on Children in the Criminal Justice System (21 July 1997, 1997/30) recommend that “diversion or other alternative initiatives” should be prioritised and that the State should make available “a broad range of alternative and educative measures at the pre-arrest, pre-trial, trial and post-trial stages” (para. 15). The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) Rule 18.1 provides that that a “variety of disposition measures” should be made available and includes the following examples:

i. Care, guidance and supervisions orders;

ii. Probation;

iii. Community service orders;

iv. Financial penalties, compensation and restitution;

v. Intermediate treatment and other treatment orders;

vi. Orders to participate in group counselling and similar activities;

vii. Orders concerning foster care, living communities or other educational settings;

viii. Other relevant orders.


d. Procedural rights:

In addition to basic principles relating to pre-trial detention, international and regional standards provide guidance on procedural protections for accused people subject to pre-trial detention proceedings.

1. The right to be present

Regarding Article 14 ICCPR, which states that all persons shall be equal before the courts and tribunals, Recommendation (2006)13 provides for the accused to “have the right to appear at remand proceedings” (Appendix, para. 28). According to the UN’s Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly, 9 December 1988, A/RES/43/173 (the Body of Principles), at such a hearing the detainee “shall have the right to defend himself or to be assisted by counsel” (Principle 11).

2. The right to be promptly informed of charges

ICCPR Article 9(2) states that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. The HRC has found a violation where there was a delay of 45 days (Campbell v Jamaica, Communication No. 248/1987, UN Human Rights Committee (HRC), 30 March 1992, para. 6.3) and again where the complainant was not informed of the charges against him until 7 days after their detention (Grant v Jamaica, Communication No. 597/1994, UN Human Rights Committee (HRC), 22 March 1996, para. 8.1). It has also stated that the reason for this provision is to “enable a detained individual to request a prompt decision on the lawfulness of his or her detention by a competent judicial authority” (Ibid). Furthermore, according to the Body of Principles, the information provided must be in a language which the accused understands with the “assistance, free of charge, if necessary, of an interpreter” (Body of Principles, Principle 14).

3. The right of access to a lawyer

The right of access to a lawyer generally is protected by Article 14 (b) and (c) of the ICCPR, but the HRC has also found violations of Article 9(4) of the ICCPR where complainants have not had access to legal representation on the grounds that the deprivation of such access rendered the complainant practically unable to obtain a decision by a court on the lawfulness of his detention (Campbell v Jamaica, para. 6.4. See also: Berry v. Jamaica, Communication No. 330/1988, UN Human Rights Committee (HRC), 7 April 1994, para. 11.1). Principle 11.1 of the Body of Principles states that “a detained person shall have the right to defend himself or to be assisted by a lawyer as prescribed by law”. Principle 17.1 of the Body of Principles states that the accused should not only be informed of this right “promptly after arrest,” but also that he must be provided with “reasonable facilities for exercising it”, including by being assigned a lawyer if he does not have a lawyer of his choosing “where the interests of justice so require” (Ibid Principle 17.2). This principle reflects the language of ICCPR 14.3, which states that states that everyone has the right, “[t]o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”. It also states that that this lawyer must be provided free of charge if the accused does not have sufficient means to pay. Similarly Article 6(3)(c) ECHR requires legal assistance to be provided in order for a trial to be considered fair and this must be provided for free when the interests of justice so require.

In addition to formal access to a lawyer, international standards also provide for rights that flow from the right of access to a lawyer, for example that the lawyer and accused must have adequate time, facilities and communication in order to prepare defence.  According to the HRC, a fair trial requires “equality of arms and respect for the principle of adversary proceedings” (Wolf v Panama, Communication No. 289/1988, 8 April 1992, para. 6.6). This includes the opportunity to personally attend the proceedings and to instruct a lawyer for the accused, but the HRC has also highlighted that “the principle of equality of arms is not respected where the accused is not served a properly motivated indictment”.


e. Limit at Trial within reasonable time/release pending trial

International and regional standards also regulate the duration of pre-trial detention, which is related to the right to a trial held within a reasonable period of time. Article 9(3) of the ICCPR links the right to a timely trial to the right to liberty, stating that a person charged with a criminal offence “shall be entitled to a trial within a reasonable time or to release.” Rule 6.2 of the Tokyo Rules similarly states that pre-trial detention “shall last no longer than necessary”.

The HRC has held that “what constitutes ‘reasonable time’ is a matter of assessment for each particular case” (Fillastre v Bolivia, Communication No. 336/1988, 5 November 1991, para. 6.5). For example, it has held that the lack of adequate budgetary appropriations for the administration does not justify unreasonable delays (Ibid). Neither does the process of evidence gathering (Ibid, para. 4.2). When delays do become necessary, the judge must reconsider alternatives to pre-trial detention (General comment no. 35, para. 37).


f. Right to Review

1. Prompt initial hearing

Article 9(3) of the ICCPR specifies that [a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”. According to Principle 37 of the Body of Principles, “[n]o person may be kept under detention pending investigation or trial except under upon the written order of such an [judicial or other] authority”.

The HRC has stated that the duty to be brought “promptly before a judge” exists regardless of whether the detainee requests it (Concluding Observations, Republic of Korea, 1 November 1999, CCPR/C/79/Add.114, para. 13). “Promptly” is taken to mean no more than “a few days” (General Comment No. 8: Article 9 (Right to Liberty and Security of Persons), 30 June 1982, No. 8, para. 2) and ideally this would be done within 48 hours (Concluding Observations, Czech Republic, 27 August 2001, CCPR/CO/72/CZE, para. 17). The 48 hour requirement is also contained in the Council of Europe’s Recommendation (2006)13 (Para. 14(2)). In the opinion of the HRC, “[a]n especially strict standard of promptness, such as 24 hours, should apply in the case of juveniles” (General Comment No. 35 on Article 9 (Liberty and security of person), CCPR/C/GC/35, 16 December 2014, para. 33).

The HRC has stated that the judicial authority must be “independent, objective and impartial” in order to comply with Article 9(3) ICCPR and that if the public prosecutor makes these decisions (rather than a judicial authority) this standard will not be met (Kulomin v HungaryCommunication No. 521/1992, 22 March 1996). As explained by the HRC, it is important that “such review is, in its effects, real and not merely formal” and the court is not limited to mere compliance of the detention with domestic law” (A. v Australia, Communication No. 560/1993, 30 April 1997, para. 9.5).

2. Right to ongoing review of the legality of pre-trial detention

Legal provisions at an international and regional level highlight the obligation on authorities to ensure that pre-trial detention, once imposed, continues to be warranted as proceedings unfold in time. The justifications for detention and the apparent strength of the evidence upon which detention was ordered may wane over time, while the human rights consequences of detention only intensify as the duration of detention lengthens. The right to ongoing evaluation of the legality of detention consists of (i) a right to appeal an initial imposition of pre-trial detention, (ii) the right to ongoing review, and (iii) the right to appeal decisions to extend detention.

Article 9(4) ICCPR entitles the detainee to challenge the lawfulness of their confinement before court “without delay”. The HRC has not clarified what this means but has found a breach where there was a delay of 5 weeks (Kelly v JamaicaCommunication No. 253/1987, 8 April 1991, Appendix II). Principle 39 of the Body of Principles, and Rule 6.3 of the Tokyo Rules, make clear that both appeals and regular reviews must be heard by “a judicial or other competent independent authority”.

Unit 1: ECtHR Case Law

European Standards (Council of Europe and European Court of Human Rights)

The European Court of Human Rights (ECtHR), interpreting the standards of the ECHR, has elaborated more specific and developed guidance on the administration of pre-trial detention. In addition to this legal guidance, the Council of Europe has also promulgated soft law guidelines which are set out below where relevant.


a. Prohibition on arbitrary detention

Article 5 of the ECHR protects the Right to Liberty and Security.  Under Article 5(1) ECHR, the accused can only be deprived of their liberty “in accordance with a procedure prescribed by law”.   According to Article 5.3 everyone arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. The ECtHR recognises two separate stages under Article 5(3): “the early stages following an arrest on suspicion of having committed a criminal offence, and the period pending any trial before a criminal court, during which the individual may be detained or released with or without conditions.” (McKay v The United Kingdom, App. 543/03, para 31). “During the initial stage under the first limb of Article 5(3), the detainee’s detention may be justified by the existence, on its own, of a ‘reasonable suspicion’ that he had committed a criminal offence.

However, the persistence of suspicion will not suffice to justify, after a certain lapse of time, the prolongation of the detention, although the ECtHR has not attempted to translate this concept into a fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence.” (Magee and Others v The United Kingdom, Apps 26289/12, 29062/12 and 29891/12, para 104). In Magee, the applicants were arrested and detained. They argued that the authorities should have considered releasing them. However ECHR did not find any violation of Article 5/3 as the applicants were detained in the early stage when the reasonable suspicion that they committed the offence was enough to deprive them of liberty (para. 104). The principle that pre-trial detention, following the initial hours post-arrest, requires more than the strong suspicion of an offence, even a serious one, is now well established in ECtHR case law (Tomasi v France, App. 12850/87, para. 89).

Further, the Council of Europe’s Recommendation of Ministers to member states on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse (2006)13 (Recommendation (2006(13)) requires judicial authorities to apply “objective criteria” when deciding whether remand is necessary (Appendix, para. 8(1).


b. Pre-trial detention as a measure of last resort/Lawful Grounds of detention

1. Measure of last resort

The ECtHR has consistently highlighted the principle of detention as a measure of last resort and the strong presumption of release (Michalko v Slovakia, App. 35377/05, para. 145) pending trial in order to protect the presumption of innocence. It has said, for example, that “whenever the danger of absconding can be avoided by bail or other guarantees, the accused must be released.” (Vrenčev v Serbia, App. 2361/05, para 76).  For example, in Vrenčev, the ECtHR found a violation of Article 5(3) due to the fact that the flight risk assessed by the national court could have been addressed by conditional release, as had been requested by the applicant – a request ignored by the national court.

The ECtHR has repeatedly emphasised the presumption in favour of release (Michalko v. Slovakia, App 35377/05, para 145) and clarified that the state bears the burden of proof to show that a less intrusive alternative to detention would not serve the respective purpose (Ilijkov v BulgariaApp 33977/96, para 85). The detention decision must be sufficiently reasoned and should not use “stereotyped” (Yagci and Sargin v TurkeyApp 16419/90, 16426/90, para 52) forms of words. The arguments for and against pre-trial detention must not be “general and abstract” (Smirnova v Russia, App 46133/99, 48183/99, para 63). The court must engage with the reasons for pre-trial detention and for dismissing the application for release (Buzadji v Moldova, App 23755/07, para 3).

2. Lawful grounds of detention:

The ECtHR has identified “four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial; the risk that the accused, if released, would take action to prejudice the administration of justice or commit further offences or cause public disorder.” (Piruzyan v ArmeniaApp. 33376/07, para. 94). These are echoed by the Council of Europe’s Recommendation (2006(13)), which stipulates that remand in custody should only be used in relation to offences which carry a prison sentence (Appendix, para. 6). It also requires the following four conditions to be satisfied:

a. There is reasonable suspicion that he or she committed an offence; and

b. There are substantial reasons for believing that, if released, he or she would either (i) abscond, or (ii) commit a serious offence, or (iii) interfere with the course of justice, or (iv) pose a serious threat to public order; and

c. There is no possibility of using alternative measures to address the concerns referred to in b.; and

d. This is a step taken as part of the criminal justice process (Ibid para. 7).

The ECtHR emphasises that arguments for and against release must not be “general and abstract,” but particularised to the individual accused and his situation (Khudoyorov v Russia, App. 6847/02, para. 173). For example, the ECtHR has stated that “the risk of absconding has to be assessed in light of the factors relating to the person’s character, his morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted.” (Becciev v Moldova, App. 9190/03, para. 58). The danger of absconding cannot just be assessed in reference to the potential length of sentence. Neither is the fact that the accused has allegedly committed an offence itself a sufficient reason for ordering pre-trial detention. The Court has moreover stated that the face of a lack of a fixed residence is not, in itself, a sufficient ground (Sulaoja v. Estonia, para 64). The Court views the severity of the sentence faced as a relevant element in the assessment of the risk that an accused might abscond. However, the severity of the charges does not, on its own, justify long periods of detention on remand (See Idalov v Russia, App. 5826/03, 22 May 2012, para. 145; Garycki v. Poland, para. 47; Chraidi v. Germany, para 40; Ilijkov v. Bulgaria, paras 80-81).

Regarding the repetition of offences ground, the ECtHR has concluded that the seriousness of a charge may lead authorities to place an individual on remand in order to prevent the attempt of further offences. Worth noting though, is that the danger has to be plausible and the measure appropriate, in the light of the circumstances of the case and in particular the past history including the personality of the person concerned (see Clooth v Belgium, App. 12718/87, para 40). The ECtHR have said that prior convictions may serve as ground for a reasonable fear of committing a new offence (Selçuk v. Turkey, para 34; Matznetter v. Austria, para 9). The inclination to commit new offences may not however, be concluded from the lack of a job or a family (Sulaoja v. Estonia, para 64).

According to the ECtHR the risk that the accused when released would cause public disorder may justify pre-trial detention for some time. “However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence.” (Letellier v France, App. 12369/86, para 51, see also I.A. v. France, para 104; Prencipe v. Monaco, para 79; Tiron v. Romania, paras 41-42).

In general, the justifications for pre-trial detention tend to wane over time. The danger of flight, for example, necessarily decreases with the passages of time spent in detention. In Neumeister v. Austria (para 10) the ECtHR reasoned that since the length of detention on remand will be deducted from the period of imprisonment which the person concerned may expect if convicted. Such an end is likely to reduce the detainee’s temptation to flee. With regard to the obstruction of proceedings ground, the ECtHR stated that “in the long term the requirements of the investigation do not suffice to justify the detention of a suspect: in the normal course of events the risks alleged diminish with the passing of time as the inquiries are affected, statements taken and verifications carried out” (See Clooth v Belgium, in which the applicant was a suspect in a murder and arson case with previous convictions. He was placed in pre-trial detention on the ground of threatening public safety for over 3 years. The Court did not find sufficient grounds that would justify continuation of detention).


c. Alternatives

In line with the necessity to limit pre-trial detention to situations where it is strictly necessary to achieve a lawful aim, the ECtHR has obliged states to rely on alternatives to detention wherever possible. It has stated that, “detention of an individual is such a serious measure that it is only justified where other, less stringent measures have been considered and found to be insufficient to safeguard the individual or the public interest which might require that the person concerned be detained” (Ambruszkiewicz v PolandApp. 38797/03, para. 31). The consideration of alternatives is also key in order to ensure that pre-trial detention is proportionate, and that it remains “indispensable” on a continuing basis (Ladent v PolandApp. 11036/03, para. 55).

Furthermore, the state bears the burden of proof of showing that a less intrusive alternative to detention would not serve the relevant purpose (Ilijkov v Bulgaria, App. 33977/96). The ECtHR has stated, for example, that “when deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial” (See Idalov v Russia, para. 140. The applicant was charged with abduction and he was placed in detention pending trial on the basis that there is a fear that he would abscond. The Court found violation of Article 5/3 as Russia relied only on the gravity of charges and did not consider alternative preventive measures, when ordering the pre-trial detention. The appeal proceedings were held in absence of the applicant or his lawyer. Therefore there was a breach of Article 5/4. As his cell was overcrowded and the applicant was subject to inhuman and degrading treatment during his transport to detention, the Court found Violation of Article 3.). As mentioned earlier, the ECtHR has reiterated that “whenever the danger of absconding can be avoided by bail or other guarantees, the accused must be released, it being incumbent on the national authorities to always duly consider such alternatives” (Vrenčev v Serbia, para 76).

The Council of Europe has promulgated extensive guidelines and recommendations relating to the use of conditional release as an alternative to pre-trial detention. The Committee of Ministers’ Recommendation No R (99)22 concerning prison overcrowding and prison population inflation, 30 September 1999 (Recommendation (99)22) states that: “The widest possible use should be made of alternatives to pre-trial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorisation, the provision of bail or supervision and assistance by any agency specified by the judicial authority” (Appendix, para. 12).

Particular mention is made of the use of electronic surveillance devices (Ibid). Recommendation (2006)13 refers to further alternatives, including undertakings not to engage in particular conduct, requirements not to meet specified persons without authorisation, requirements to surrender passports or other identification papers; and requirements to provide or secure financial or other forms of guarantees as to conduct pending trial (Appendix, para. 2(1). The Committee of Ministers’ Recommendation Rec(2000)22 29 November 2000 to member states on improving the implementation of the European rules on community sanctions and measures (Recommendation (2000)22) says that provision “should be made for a sufficient number of suitably varied community sanctions and measures” with examples including community service and victim-offender mediation (Appendix 2, para. 1).


d. Procedural Rights

The court taking the pre-trial decision must have the authority to release the suspect, and be a body independent from the executive and both parties (Singh v UKApp. 23389/94, para. 65). Decisions whether to detain must be taken at an oral, adversarial hearing, in which the defence must have the opportunity to effectively participate (Göç v Turkey, App. 36590/97, para. 62). ” The defendant’s right to be “promptly” informed of the charges is also present in Article 5(2) ECHR and will be satisfied where reasons are given “within a few hours” (Council of Europe, Guide on Article 5 of the Convention: Right to Liberty and Security, 2nd edition, June 2014, para. 117). The Council of Europe’s Recommendation (2006)13 similarly clarifies that access to information, including evidence and documentation about the charges must be provided in order for legal assistance to be effective, stating that “[a] person whose remand in custody is being sought and his or her lawyer shall have access to documentation relevant to such a decision in good time” (Recommendation (2006)13, Appendix, Para. 26). Such documentation should include a copy of the decision or reasons for remand, which should be provided on the same day as the ruling except in exceptional circumstances (Ibid).


e. Trial within a reasonable time/Duration of pre-trial detention

Article 5(3) ECHR states that the accused “shall be entitled to trial within a reasonable time or to release pending trial.”The ECtHR has held that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the ECHR (Idalov v Russia, para. 139. See also Labita v Italy Application no. 26772/95, para 152Krikunov v Russia, App. 13991/05, para 35; Kudla v PolandApp. 30210/96, para 110; W v Switzerland App14379/88, para 30However, “justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities” (Idalov v Russia, para. 140).

The burden is on the state, in the form of national judicial authorities, to ensure that the pre-trial detention of an accused person does not exceed a reasonable time. This requires that judicial authorities offer reasoned and individualised justifications for the ongoing need for pre-trial detention (De Wilde, Ooms and Versyp v Belgium, Apps 2832/66, 2835/66, 2899/66, 18 June 1971, para. 76). The ECtHR has said that authorities “must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the public interest which justifies a departure from the rule in Article 5 and must set them out in their decisions on the applications for release” (Idalov v Russia, para. 141). As an example of pre-trial detention being found to violate Article 5(3) due to excessive duration, see Vosgien v. France (application no. 12430/11), in which a violation was found due to insufficient reasons given for a pre-trial detention lasting four years, three months and 2 days.

Though a statutory maximum length of detention is not explicitly required by ECtHR jurisprudence, the ECtHR has stated that “when the maximum period of detention is absolute, laid down by the law, and thus known in advance, the authorities responsible for the detention are under a duty to take all necessary precautions to ensure that the permitted duration is not exceeded” (Gal v Ukraine, App. 6759/11, 16 April 2015, para. 26).

In prosecutions involving pre-trial detention, authorities must conduct proceedings with special diligence and speed (Stögmüller v AustriaApp. 1602/62, 10 November 1969, para. 5). “Special diligence” is not defined by the ECtHR -whether this has happened or not must be determined by considering the individual facts of the case (Buzadji v MoldovaApp. 23755/07, 16 December 2014, para. 3).


f. Review of pre-trial detention:

Article 5(4) ECHR states that anyone detained may challenge “the lawfulness of his detention”, with a decision being made “speedily by a court”. Recommendation (2006)13 states that there is a right of appeal against an order for remand in custody (or its extension) as well as a separate right to challenge the lawfulness of the detention (Recommendation (2006)13, Appendix, paras 18-19). It specifies that the “interval between reviews shall normally be no longer than a month, unless the person concerned has the right to submit, and have examined, at any time, an application for release” (Ibid, para. 17(2)). Principle 32 of the Body of Principles states that the detainee can make a challenge at any time and that proceedings must be “simple and expeditious and at no cost for detained persons without adequate means”.


1. Prompt initial hearing:

In order to satisfy the ECtHR’s requirements, review must be prompt (see: Brogan and others v UK, Apps 11209/84, 11234/84, 11266/84, 11386/85, in which the court held that periods of pre-trial detention without judicial review ranging from four to six days violated Article 5(3), automatic, and before a judicial authority (McKay v The United Kingdom, App. 543/03, paras 30 – 40.The applicant was arrested for robbery. Magistrates’ court initially refused to release him on bail but he was released 3 days after the arrest. ECtHR did not find violation of Article 5/3 as this case was conducted with due expedition). Any period in excess of four days prior to an initial hearing is prima facie too long (Oral and Atabay v. Turkey, para 43; McKay v. the United Kingdom[GC], para 47; Năstase-Silivestru v. Romania, para 32). Shorter detentions could violate the promptness requirement, given that there are no valid circumstances preventing the authorities from bringing the arrested person before a judge sooner (Gutsanovi v. Bulgaria, paras 154-59; İpek and Others v. Turkey, paras 36-37; and Kandzhov v. Bulgaria, para 66).

The purpose of the prompt initial hearing is “to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty” (Ibid, para. 33). According to the ECtHR, there are no exceptions to the requirement to be brought promptly before a judge or other judicial officer after arrest, even if there was prior judicial involvement (Bergmann v Estonia, App. 38241/04, para 45.) and the hearing must be automatic, and cannot depend on the application of the detained person” (McKay v The United Kingdom, para. 34). Furthermore “the initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence, in other words, that detention falls within the permitted exception set out in Article 5(1)(c). When the detention does not, or is unlawful, the judicial officer must then have the power to release” (Ibid, para. 40). The authority must be independent of both parties and of the executive (Neumeister v AustriaApp. 1936/63, 27 June 1968, para. 24).


2. Ongoing review:

In addition to the prompt initial hearing, a detainee is entitled to apply to a court having jurisdiction to decide speedily whether or not their deprivation of liberty has become unlawful in the light of new factors which have emerged subsequently to the decision on their initial placement in custody” (Abdulkhakov v Russia, App. 14743/11, para. 208). The ECtHR has stated that “arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the ‘lawfulness,’ in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine “not only compliance with the procedural requirements set out in [domestic law] but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention” (Nikolova v Bulgaria, App. 31195/96, para. 58). These ongoing reviews should “follow at “reasonable intervals”… a detainee should not run the risk of remaining in detention long after the time when his deprivation of liberty has become unjustified” (Abdulkhakov v Russia, para. 209).


3. Nature of review:

The fair trial rights contained in Article 6 ECHR apply equally to appeal decisions as they do to the initial decision to impose pre-trial detention (Delcourt v Belgium, App. 2689/65, para. 25). This means that a review hearing has to take the form of an adversarial oral hearing with the equality of arms of the parties ensured (Göç v Turkey, para. 62). The decision on continuing detention must be taken speedily, and reasons must be given for the need for continued detention (Rehbock v Slovenia, App. 29462/95, para. 84). Previous decisions must not simply be reproduced (Ilijkov v Bulgaria, para. 85) and courts reviewing pre-trial detention decisions must be mindful of the on-going nature of the presumption in favour of release (Michalko v Slovakia, para. 145) as well as the on-going duty to consider whether alternative measures could be used (Darvas v HungaryApp. 19547/07, para. 27).

Unit 2: Relevant EU Standards

European Union Standards

a. The Roadmap Directives

Recent developments in EU law on procedural rights impact on the standards which EU Member States should uphold in relation to pre-trial detention decision-making. Under the programme laid out in the Council Resolution on a Roadmap (30 November 2009, 2009/C 295/01) for strengthening procedural rights of suspected or accused persons in criminal proceedings (the “Roadmap”), the EU has adopted four directives on criminal procedural rights (the “Roadmap Directives”):  Directive 2010/64/EU(20 October 2010) of the European Parliament and the council on the right to interpretation and translation in criminal proceedings (the “Interpretation and Translation Directive”); Directive 2012/13/EU (22 May 2012) of the European Parliament and the council on the right to information in criminal proceedings (the “Right to Information Directive); Directive 2013/48/EU (22 October 2013) European Parliament and the council on the right of access to a lawyer in criminal proceedings (the Access to a Lawyer Directive”); and the newly-adopted Directive (20 October 2015) on the presumption of innocence and the right to be present at one’s trial on the presumption of innocence and the right to be present at one’s trial (the “Presumption of Innocence Directive”).

Because each of the Roadmap Directives focuses at least in part on procedural protections during the pre-trial period, they have the potential to improve rights protection in relation to pre-trial detention decision-making in ways that could help to constrain its excessive use. For example, the Interpretation and Translation Directive provides not only interpretation during court hearings but also for necessary private conferences between lawyers and defendants (Interpretation and Translation Directive, Article 3.1) as well as translations of essential documents, which include “any decision depriving a person of liberty, any charge or indictment.” (Ibid, Article 3.2).

In relation to access to a lawyer, the Access to a Lawyer Directive provides that defendants appearing at pre-trial detention hearings must have access to a lawyer “in such time and in such a manner that they are able to exercise their rights of defence practically and effectively” (Access to a Lawyer Directive, Article 3.1). This, according to the Access to a Lawyer Directive, means that access must occur (inter aliabeforethey are questioned by a judicial authority (Ibid, Article 3.2(a); and in “due time” before any court appearance. Furthermore, meetings between a suspect and his lawyer, including those prior to questioning by the police or other law enforcement or judicial authority should be held “in private” (Access to a Lawyer Directive, Article 3.3(a)).  Access to a lawyer in these earliest stages of criminal proceedings is of particular importance in the context of initial pre-trial detention hearings, which often occur at a juncture in proceedings during which suspects and defendants have had minimal contact with a lawyer, and such contact may not have been in private as provided for by the text of the Directive.

The Access to a Lawyer Directive also provides that defence lawyers be able to “be present, and participate effectively” (Ibid, Article 3.3(b) and that Member States should “make the necessary arrangements to ensure that defendants are in a position to access effectively their right to a lawyer” (Ibid, Article 4). These provisions should ensure that the right to a lawyer at pre-trial detention hearings is meaningful; for example that bureaucratic challenges to obtaining provisional legal aid has not made access to a lawyer practically impossible, and that lawyers are able to intervene effectively in proceedings.

In relation to the right of access to information, Article 7(1) of the Right to Information Directive provides for the right of arrested and detained persons to have access to case materials “in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention.” This provision is made without derogation, and therefore should ensure that defendants or their lawyers are equitably armed with information necessary to challenge prosecutorial requests for pre-trial detention. Futhermore, the Right to Information Directive imposes an obligation on Member States to provide a letter of rights to detained suspects, which must include “basic information about any possibility, under national law, of challenging the lawfulness of the arrest; obtaining a review of the detention; or making a request for provisional release.” (Article 4(3)).

The Presumption of Innocence Directive, while noting the “clear link” between the presumption of innocence and the right to pre-trial liberty (Presumption of Innocence Directive, para. 1.14), explicitly declines to deal with pre-trial detention directly because the topic was being dealt with by other initiatives (Ibid, para. 1.16), making reference to the Commission’s Green Paper on Detention and the resulting Parliamentary vote in favour of a legislative tool to address the EU-wide problem of overuse of pre-trial detention. However, the Presumption of Innocence Directive does cover a number of issues relevant to pre-trial detention processes, by prohibiting public references to guilt prior to conviction (Article 4) and presentation of the accused in physical restraints that would suggest guilt (Article 5); by protecting an absolute right to silence and non-cooperation without the ability of authorities to draw negative inferences from the exercise of this right (Article 7), and the right to be present at trial (Article 8).


b. European Supervision Order

In recognition of the challenges non-nationals face in obtaining release pending trial, especially in light of the large number of EU citizens living in and traveling to other EU Member States due to freedom of movement, the EU has adopted the Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (the ESO Framework Decision) which came into force on 1 December 2012. The ESO Framework Decision establishes a system whereby the decision of a judicial authority in one Member State, imposing supervision measures on a non-resident defendant as an alternative to pre-trial detention, can be forwarded to the defendant’s state of residence, which then has to recognise the decision and supervise the defendant itself. Unfortunately, the ESO has rarely been used.


c. Avenues of redress

1. Court of Justice of the European Union (CJEU)

It has not traditionally been easy to obtain redress for violations of defendants’ rights in the pre-trial detention context. Compensation regimes across the EU differ widely, and are often limited to cases where actual innocence is proved, rather than remedying the excessive or unjustified use of pre-trial detention as such. In some instances, the failure of states to provide effective remedies in the form of compensation to defendants subjected to pre-trial detention and later acquitted has been found by the ECtHR to infringe the presumption of innocence (See, Vlieeland Boddy and Marcelo Lanni v Spain, Apps 53465/11 and 9634/12, 16 Feb 2016, finding that Spain’s failure to provide compensation for pre-trial detention following acquittal and termination of the case respectively infringed on the presumption of innocence).Even where remedies exist in law, it is often impractical to utilize them in practice; for example, due to excessive costs in relation to mounting a claim against unlawful pre-trial detention. This issue is particularly germane for defendants who by virtue of being detained will not be earning an income.

Unfortunately however, rights violations in the context of pre-trial detention are not always sufficiently remedied at the ECtHR. This is due to the fact that petitioners may only apply to the ECtHR complaining of rights violations once all domestic remedies have been exhausted. In the criminal context, this will mean that all domestic appeals, including any constitutional or habeas corpus actions will have already concluded. There are real difficulties for criminal defendants as petitioners in this process due to the fact that the road to remedy is so long.

To the extent that EU law, in the form of the Roadmap Directives, arise in such a way that doubt is raised about the lawfulness of pre-trial detention, the CJEU will have jurisdiction. This jurisdiction means that where a national court does not agree with a lawyer’s understanding of how the Roadmap Directives apply, then a reference to the CJEU may be required. In cases where an applicant is detained, the CJEU offers another powerful vehicle for enforcement of rights in the pre-trial period: the urgent ruling procedure. Article 267 TFEU now states that if a question of EU law is raised”‘in a case pending before a court or tribunal of a Member State with regard to a person in custody, the CJEU shall act with the minimum of delay”.

The average time for consideration of a preliminary ruling, in 2011, was of about 16 months. This can be a long time to wait for someone who is in detention. Accordingly, since 2008, the CJEU has had in place an urgent procedure for preliminary rulings, called the ‘PPU’ (procédure préjudicielle d’urgence). In 2011, the average time for consideration of these cases was just 3 months. This quicker procedure is important for criminal lawyers dealing with questions of EU law that impact on the lawfulness of a detention decision.  For more information and resources on requesting preliminary references under the PPU in national criminal proceedings, see our training module on the CJEU for criminal lawyers.

2. Commission Infringement Procedure

Besides the individual preliminary ruling mechanism, the Roadmap Directives also potentially expose Member States to infringement proceedings if the Directives have not been adequately transposed and implemented. Infringement proceedings need not necessarily be initiated by the Commission. Any individual may lodge a complaint to the Commission alleging incorrect transposition or implementation of an EU Directive, which should result in a reasoned decision and may result in a referral of the complaint by the Commission to the CJEU, which can then order further fines against the offending Member State. Criminal lawyers alert to the potential impact of the Roadmap Directives on cases involving pre-trial detention could consider lodging a complaint if there is a systematic failure on the part of their Member State to implement some aspect of EU law. Such an action might best be undertaken in conjunction with an NGO or other civil society organisation.

Module 4: Specific Issues Arising in Practice

Access to the Case File

Specific issues arising in practice in the EU

Despite the expansive body of international, regional and domestic level law upholding the basic principles of detention as a measure of last resort and the procedural protections that ensure them, Fair Trials’ research has demonstrated that these are not always enforced in practice, even in the EU where standards and enforcement are higher than in many other global regions.  This module is designed to give lawyers an indication of specific issues to be alert to in practice, both when representing individuals in domestic criminal cases involving pre-trial detention, as well as when seeking to challenge surrender in EAW cases based on poor pre-trial detention decision-making in another Member State.

Here, Professor Ed Cape discusses the transposition of the Right to Information Directive in England and Wales:

I. Access to the case file:

Article 7(1) of the Right to Information Directive provides for access to the case file “in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention.” Unfortunately, this access is not always provided in practical terms. Obstacles to full access to these materials took three forms:


a. Limitations on access: Despite the non-derogable nature of the right of access to case materials essential to challenge arrest or detention in Article 7(1) of the Right to Information Directive, prosecutors still restrict access to certain materials in some Member States. Estonian law, for example, permits prosecutors to restrict access to the case file “if this may significantly damage the rights of another person or if this may damage the criminal proceedings.” In parts of Hungary, the prosecution decides which documents are essential for the defence to view, potentially censoring key documents. Insufficient case file access has been noted in many EU Member States according to Fair Trials-coordinated research, including in LithuaniaPolandRomania, and Spain (where, in addition to routine problems accessing case files, 13% of cases reviewed by researchers involved the invocation of secrecy provisions formally preventing defence access). In Sweden, access is not automatic; the defence must request the case file from the prosecution and their access to it is usually limited in time. Article 7(1) has not been fully transposed in England and Wales, where the right to access evidence relates only to police custody and not to subsequent pre-trial detention (Code of Practice C, para. 3.4(b)).


b. Issues with modalities of access: Apart from refusals to provide evidence, practical challenges can also prevent sufficientaccess to relevant case materials. For example, in England and Wales, lawyers have complained that in cases involving electronic disclosure in relation to a defendant in pre-trial detention, difficulty obtaining paper copies in good time have made meaningful consultation with clients who are detained and cannot therefore access electronic materials impractical. In other jurisdictions, there may be only a single paper file which all parties, including the judge, must consult for access to case materials, leaving insufficient and unequal time for each. For an example of challenges associated with the modality of access to case materials, see Fair Trials’ expert opinion provided in connection with a criminal case in Sweden in which the modality of the case materials (in this case, defense lawyers were shown SMS messages but were not provided with copies of these in electronic or any other form) was challenged by the defense. The expert opinion contains a number of examples of problematic modes of access to case materials noted by Fair Trials’ network members throughout the EU (see para 8), alongside the ECtHR caselaw that supports Article 7(1) of the Right to Information Directive.


c. Problems relating to the timing of access: Besides inaccurate and incomplete evidence, access to case materials is often granted too late for the defence to be able to make sufficient use of it. In Ireland, for example, 69% of respondents to a survey of defence lawyers reported that lawyers do not have access to the case file prior to the initial bail hearing (page 34). In Luxembourg, lawyers frequently have only ten minutes to prepare (page 16). In England and Wales, a majority of defence lawyers surveyed by researchers cited delays in evidence disclosure as one of the major driving forces behind lengthy detention periods, and 30% of surveyed lawyers reported not always having access to case materials before the first detention hearing .


d. Substance of materials: What constitutes materials “essential” to challenging arrest and detention is still an unsettled question. Lawyers in England and Wales have reported that in many cases, the case materials provided by the Crown Prosecution Service (CPS) are minimal, consisting primarily of police notes, and rarely include witness statements or physical evidence. Similarly in other jurisdictions, such as Lithuania and Poland, the prosecution still exercises discretion over what material is shared, leaving open the possibility that essential case materials are not being included in disclosure to the defence.

Unit 1: Non-national defendants/European Supervision Order

Non-nationals are at a particular disadvantage in pre-trial detention proceedings. In Italy, national data demonstrates that foreign nationals are detained disproportionately – they make up 8.9% of the total population but comprise roughly 40% of pre-trial detainees. In some cases, a finding of flight risk is evidenced by foreign nationality alone without reference to any other factor (i.e. family and local ties, employment, history of flight, health, etc.). Cases involving non-nationals more frequently require interpretation, which across the EU can be of poor quality. Poor interpretation has knock-on effects on the ability of non-national defendants; they frequently do not understand their rights and thus may struggle to obtain legal representation, understand proceedings and mount a defence.

Sometimes this discrimination is inherent in national law. The Dutch criminal procedural code, for example, widens the scope of the circumstances for which pre-trial detention can be ordered if a suspect has no fixed abode. In Luxembourg, Article 94 of the Code of Criminal Investigation provides that, in the case of suspects who do not reside in the Grand-Duchy, the judge may order detention even absent findings of a lawful ground of detention “if there are serious indications of his having committed the offence and the latter carries a criminal or correctional custodial penalty”. The same requirement does not apply to residents.

Unit 2: Challenging Existence of Grounds

Fair Trials’ research has highlighted the poor quality of reasoning provided by many judges when ordering pre-trial detention. In many Member states, researchers noted that judges frequently use formulaic reasoning that does not engage with the specific facts of each case. For example, in England and Wales, even where magistrates had retired to consider their decision before announcing it and so had presumably engaged in substantial reasoning, they only specified their reasons for ordering detention in about a third of cases observed by researchers. Frequently judges announce the grounds of detention without explaining what factors or evidence led them to that finding. However, without stating the reasons for the finding of a particular ground of detention, challenging the decision both at first instance and on appeals and reviews is very difficult for defendants.


a. Risk of reoffending: The ECtHR has established that a risk of reoffending can only justify pre-trial detention if there is actual evidence of a definite risk of re-offending. Lack of employment or local family ties are not in themselves sufficient to justify detention. A risk of reoffending is often based on a history of past allegations, regardless of whether these are related to the current accusations, the extent of actual culpability in past cases, or the length of time that has passed since the past behaviour occurred. Findings of risk of reoffending were routine in relation to drug users in England and Wales and in many other EU jurisdictions, but many Member States did not have coordinated drug treatment programs that could meet the needs of accused drug users and keep them out of detention. In some jurisdictions including Lithuania, a risk of reoffending seemed to be assumed in certain classes of crime; for example, in drugs and theft cases.


b. Flight risk: As earlier described, findings of flight risk can sometimes follow from stereotypical judgments of certain classes of defendants such as non-nationals; our research indicates that drug users, and people in insecure or informal housing are also more likely to be found to be at risk of flight. With regards to flight risk, the ECtHR has clarified that the lack of a fixed residence, or the risk of a lengthy term of imprisonment if convicted, do not, in themselves, justify pre-trial detention. Nonetheless these are often the only evidence pointed to by judges to support findings of risk of flight justifying pre-trial detention.


c. Interference with investigations: This ground of detention is often used without sufficient evidence to support it. The lack of an evidence base for a finding of risk to the investigation is particularly notable in cases in which detention is maintained beyond the length of the investigation which gave rise to the justification. For example, in Hungary, researchers observed one case where detention was maintained on the basis of interference with the investigation even after the delivery of the first instance judgment. Regular, meaningful reviews that take into consideration the status of the investigation and the security of evidence already obtained are of particular importance in cases invoking this ground of detention, as the progress of the investigation should impact directly on the ongoing validity of the justification.

Unit 3: Lack of Detailed Review

Fair Trials’ research has also demonstrated that the effectiveness of reviews of detention is often insufficient. It was observed in most studied jurisdictions that the burden of persuading review courts that defendants should be released is effectively shifted to the defendant, contrary to standards established by the ECtHR. In Poland in 2014, there was only a 3% success rate for defendants seeking review of their detention in regional courts. In Romania, every single review studied by researchers in the course of the project stated verbatim, “the legal grounds which stood at the basis of ordering this measure in the first place are still the same.” In reviews in the Crown Court in England and Wales, defendants themselves do not routinely attend review hearings in person, though they may attend by video link. Some practitioners view this as a disadvantage for the defence, limiting the ability of defence counsel to take instruction and creating an environment in which it may be easier for judges to reject defence arguments.

Here, Dr Tom Smith gives an insight into pre-trial detention review procedures in England and Wales:

a. Ongoing justification for detention: In courtrooms across the EU, it is extremely difficult to persuade courts to release defendants once orders for detention have been made, even if the factual basis for the initial detention has been disproved or has become irrelevant in the intervening period. For example, in Hungary defendants are often detained on the basis of the risk of interfering with the investigation, but are not released even when the relevant investigative acts have been carried out. This dynamic is complicated by delays in court decisions in reviews of pre-trial detention, which prevent the court from responding to developments in the investigation. In England and Wales, in practice judges often require evidence of changed circumstances before agreeing to alter previous decisions to detain, even when changed circumstances are not required by law.


b. Special Diligence: Across the EU, decisions extending detention are often automatic and without reference to prosecutors’ compliance with special diligence in relation to specific investigative acts. In Spain, for example, researchers observed that renewals of detention after an initial two year period happened automatically, without interrogation as to the progress of the investigation and usually on the same grounds as first ordered, though some reviews alluded (arguably unlawfully) to the “short time spent in prison in relation to the sentence that could be given to the detainee,” thereby anticipating both a finding of guilt and the imposition of a lengthy sentence. Researchers noted that prosecutors and judges tended to refer only to the legal maximum lengths of detention, and not to any particular facts of the case. This can be contrasted with the situation in England and Wales, in which custody time limits are routinely tracked by the electronic case management system to ensure that cases involving detained suspects are prioritised. Nonetheless, some practitioners in England and Wales still encounter challenges to the efficient prosecution of cases involving detained people, such as difficulties obtaining sufficient evidence from defendants in detention and delays in disclosure.

Unit 4: Alternatives to Detention

a. Obstacles to the use of alternatives to detention: In many jurisdictions across the EU, alternatives to detention are underused, driving overdependence on pre-trial detention. A variety of alternatives to detention are typically available in Member States, usually comprised of a selection of sureties, travel bans and other geographic and residence limitations, judicial or police supervision, and in some countries, electronic monitoring and house arrest. However the conditions of release that are available in legislation and practice varies widely and in some jurisdictions is quite limited. Poland, for example, does not yet provide for electronic monitoring or home detention. In Lithuania, Greece, and the Czech Republic, electronic monitoring has been introduced but is not yet widely used. In Romania, house arrest is similarly newly introduced and not yet used much.

In Italy, despite recent reforms to the criminal procedure code aimed at reducing the use of pre-trial detention, alternatives to detention are still somewhat limited to travel bans, regular reporting to the police, restraining orders in domestic violence cases, and prohibitions on living at certain addresses. Electronic tagging is only conducted in the context of house arrest, which is considered an alternate form of detention rather than a condition of release. In Lithuania, recent reforms have for the first time allowed the court to order alternatives. These now include monetary bail, the confiscation of documents, police or other authoritative supervision, written commitments not to flee, electronic surveillance and house arrest, as well as the obligation to live apart from the victim.   In terms of alternatives to detention, Poland relies on sureties (both personal and property, police supervision, prohibitions on leaving the jurisdiction, restraining orders from victims, and criminal injunctions that prohibit a range of behaviours including government employment, driving, or performing a certain activity.

England and Wales is an example of relatively good practice in relation to release pending trial: the defendant has a prima facie right to bail, which is granted in around two-thirds of all criminal cases, and judges have an almost unlimited discretion to craft conditions that will ensure that defendants turn up for trial and refrain from interference with the investigation or reoffending, as well as those deemed necessary for the safety and well-being of the defendant (i.e. drug treatment). This allows all parties – prosecutors, defence lawyers and judges – to propose case specific and innovative conditions.

Nonetheless, challenges to the effective use of alternatives to detention still persist in England and Wales. Coordination between courts and social services, such as bail hostels and bail information schemes, require improvement and expansion to help address judicial and prosecutorial concerns about insecurely housed defendants fleeing or reoffending. The lack of sufficient bail hostels presents an especially acute problem in relation to domestic violence cases.  Where conditions are applied, better enforcement would increase public and court trust in release and could support the greater use of alternatives to detention.

Watch Dr Tom Smith discuss alternatives to pre-trial detention in England and Wales, and some of the issues surrounding them:

b. Lack of faith in alternatives: Some of the underuse of alternatives can be attributed to a lack of faith in alternatives by judges and prosecutors. There is limited information on rates of re-offending and compliance with conditions of pre-trial release, which contributes to this lack of faith by authorities. In England and Wales for example, according to Ministry of Justice data, in 2010, 142,537 offences were committed by defendants on bail (10.7% of all offences committed). In the 12 months ending March 2014, 4% of defendants granted bail in magistrates’ courts subsequently failed to appear at their next appointed court hearing. These numbers demonstrate that, by and large, the imposition of conditions of release in lieu of detention to prevent reoffending and to ensure appearance at trial is successful in England and Wales, but greater provision of bail support and information and enforcement of conditions would help to ensure that court actors and the general public retain faith in the presumption of bail.


c. Risks involved in the use of alternatives to detention: While the use of alternatives to detention, including primarily unrestricted release, is a legal obligation and is generally preferable in all but exceptional cases, reliance on them does bring its own risks to liberty. For example, where alternatives are readily used, they sometimes become alternatives to unconditional bail, while rates of detention may not be much reduced. In Ireland, for example, bail is too often accompanied by unnecessary and excessive conditions when it should arguably be more frequently unconditional. Use of conditions on release must be treated as infringements of liberty, with regular reviews and consideration given as to their human rights impact on defendants subject to them. Human rights considerations are particularly urgent with cumbersome and intrusive forms of supervision such as electronic monitoring and house arrest, and the potential for socio-economic discrimination in the application of money bail.

Module 5: Summary and final quiz

You’ve now reached the end of the course. Here, Fair Trials’ Legal and Policy Officer Rebecca Shaeffer talks you through some of the key learning from the previous modules.

Below you will find a short test of the material covered so that you can evaluate what you have learned. The correct answers will be available for you to see immediately.  We recommend that you take the time to go over them in full so that you can see where mistakes may have been made and understand what the correct answers should have been.

 

Module 1 Introduction

In 2013, the European Union passed a Directive guaranteeing all suspects and defendants effective and confidential access to a lawyer throughout criminal proceedings. This followed a flagship decision on the right of access to a lawyer by the ECtHR (Salduz v Turkey) which has already had a direct impact on legal practice in Scotland.

This course will provide an overview of the Access to a Lawyer Directive and practical guidance for lawyers on how to make effective use of this new legislation in their day-to-day practice.

You can view the Access to a Lawyer Directive Toolkit here. You can also  register for access to this course here. Once registered you will be asked to log in, after which you will be automatically redirected to the training course.

The site will remember how far you got, provided you mark a section as completed, so you’ll be able to return to it

Unit 1: Aims and Objectives of Training

In the last decade, the EU Member States have been cooperating closely on cross-border issues, principally through the European Arrest Warrant (‘EAW’). Such systems rely on mutual confidence between judicial authorities that each will respect the rights of those concerned, in particular as guaranteed by the European Convention on Human Rights (‘ECHR’).

However, cooperation has been undermined by the fact that judicial authorities called upon to cooperate with one another do not, in reality, have full confidence in each other’s compliance with these standards. In order to strengthen the system, the EU has begun imposing minimum standards to regulate certain aspects of criminal procedure through a programme called the ‘Roadmap’.

Whilst these measures have their origin in ensuring mutual trust, the result is a set of directives binding national authorities in all cases, including those which have no cross-border element. These (known collectively as the ‘Roadmap Directives’) cover:

  • the right to interpretation and translation (Directive 2010/64/EU of the European parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings);
  • the right to information (Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings);
  • the right of access to a lawyer (Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty);
  • the presumption of innocence and the right to be present at trial (Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings);
  • procedural safeguards for children (Directive on procedural safeguards for children suspected or accused in criminal proceedings); and
  • legal aid (Directive on provisional legal aid for suspects of accused persons deprived of liberty and legal aid in European arrest warrant proceedings).

This training module discusses Directive 2013/48/EU on the Right of access to a lawyer in criminal proceedings (the/this ‘Directive’), which must be transposed into national law by 27 November 2016. It includes a general approach to using the Directive and covers some specific issues that might be of particular interest to practitioners: the participation of lawyers in police questioning; waiver of the right of access to a lawyer; and the scope for authorities to derogate from that right.

The Directive is an important piece of legislation. It follows the European Court of Human Rights (‘ECtHR’) case of Salduz v. Turkey App. No 36391/02 (Judgment of 27 November 2008), which established the right of access to a lawyer in police questioning and led to significant reform across the region. The Directive has already had an impact on the development of that line of case-law at the ECtHR (see A.T. v. Luxembourg App. No 30460/13 (Judgment of 9 April 2015)) and on the way it is applied nationally. You may feel that it is your duty as a lawyer to see what the Directive means for your own cases in this evolving legal context.

Fair Trials has also produced a Toolkit on the Access to a Lawyer Directive, which includes much of the information covered in this training module, and an ‘implementation check-list’ against which practitioners can assess the extent to which national laws and policies comply with the Directive.


United Kingdom Practitioners

The United Kingdom, Ireland and Denmark have ‘opt-outs’ from the EU’s area of freedom, security and justice. In the case of the United Kingdom, this special status was negotiated under the Lisbon Treaty, and it allows the United Kingdom to out-in or out of EU legislation relating to police and criminal justice on a case-by-case basis. The United Kingdom has not decided to opt-in to the Access to a Lawyer Directive since it was adopted. Theoretically the United Kingdom opt-in at any time, but this looks unlikely at the time of writing.

Dr. Dimitrios Giannoulopoulos expands on the UK’s decision not to adopt the Directive in this video:

Similarly to the UK, Ireland also has special status that enables it to opt-in or out of the area of freedom, security and justice, and it has also so far not opted-in to this Directive. This is despite the fact that the Directive was agreed during the Irish presidency of the Council of the European Union. Denmark, by contrast, has opted entirely out of the area of freedom, security and justice, and only participates in a number of measures in this area on an intergovernmental basis.

However, criminal practice is becoming increasingly influenced by international standards and defence lawyers increasingly need to look beyond domestic law. For example, the ECtHR has continued to develop its interpretation of the right to a fair trial, including by establishing a clearer right to effective access to a lawyer. The UK courts must take this case law into account under the Human Rights Act 1998.

As explained above, the Directive not only builds on standards established by the ECtHR, it has already begun to influence its jurisprudence. This means that the Directive can be used as a useful tool by UK practitioners that could help them understand the guiding principles against which ECHR standards can be assessed.

Furthermore, the Directive establishes standards against which the legal systems of other EU Member States might be assessed particularly in cross-border cases in which there are concerns about the fairness of the criminal procedure in the requesting state. The Directive also requires that persons subject to European Arrest Warrant proceedings must be granted access to lawyers in both the issuing and the executing state which may result in new opportunities for representation in cross-border cases for UK lawyers when the UK is the issuing state.

The Directive could also have implications for the operation of Directive 2014/41/EU on the European Investigation Order (EIO), which is due to be implemented by April 2017, and to which the United Kingdom has opted-in. is intended to facilitate cross-border evidence-gathering in criminal cases. The EIO enables one Member State to obtain evidence which is located in another by providing a framework in which judicial decisions on investigative acts ordered by the judicial authority of one Member State are executed by another. Issues arising from the EIO Directive that engage the Access to a Lawyer Directive are discussed in more detail in this training module.

Unit 2: Key Concepts

Commission refers to the European Commission, the executive body of the EU, with responsibility for proposing legislation and overseeing implementation.

Council, in this training module, refers to the Council of the European Union (as opposed to the Council of Europe, the international organisation consisting of 47 member states, and is distinct from the EU), the institution of the European Union represented by ministers from each Member State, whose primary purpose is to function as a legislative body of the EU.

The Directive, unless otherwise stated, refers to Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.

European Arrest Warrant (EAW) is a judicial decision issued by a Member State with a view to the arrest and ‘surrender’ by another Member State of a requested person. The EAW Framework Decision establishes a fast-track system for surrendering people from one Member State to another.

European Investigation Order (EIO) is a judicial decision issued by a Member State to have an investigative measure carried out in another Member State.

Member States refer to the member states of the European Union.

Mutual recognition refers to a process by which a judicial decision made in one Member State is automatically recognised and, where appropriate, enforced by the judicial authorities of other Member States, with few formalities or exceptions.

Pre-trial detention means the detention of a person on reasonable suspicion that they have committed an offence, for example, for the purpose of reducing the risk of re-offending, interference with investigations, or flight, prior to the determination as to that person’s guilt or innocence by a tribunal.

The Roadmap Directives refer to a series of EU laws on fair trial rights enacted with the intention of setting minimum standards that will facilitate the operation of mutual recognition instruments. The Directive on the right of access to a lawyer is an example of a Roadmap Directive.

Module 2 – The Context

Access to a Lawyer: The Gateway Right

 

Unit 1 Access to a Lawyer: The Gateway Right

The right to a lawyer is an essential safeguard in criminal proceedings, which enables the exercise of other fair trial rights. In particular, the presence of a lawyer from the very beginning of the criminal process is crucial to ensuring the protection of a number of other defence rights, most prominently the right to silence and privilege against self-incrimination which lie at the heart of the notion of a fair trial.

The importance of the right of access to a lawyer is reflected by the explicit recognition of this right in various international and regional instruments, including Article 6 ECHR, and by the European Court of Human Rights (‘ECtHR’) (for example, in the case of Tarasov v Ukraine, App. No 17416/03 (Judgment of 31 January 2014), at para. 82).

The lawyer’s presence at the initial stages of the criminal process serves not only to remind the accused of their right to silence. The lawyer acts as a ‘gateway’ to other rights and helps prevent prejudice accruing to the suspect’s defence in a broad sense. This might include, for instance:

  • Registering concerns as to the suspect’s well-being and asking for medical examinations to be undertaken, which is particularly important as a suspect’s physical or mental state may affect the quality of their evidence, yet they may not voluntarily inform police of any issues;
  •  Where investigative steps, compulsory or otherwise (taking of blood or bodily samples, the holding of identity parades etc.), are proposed or taken, ensuring the legal preconditions for this are met and that they are carried out in accordance with procedures;
  • Ensuring that any written or oral information given about the suspect’s legal rights or the allegation has been properly understood, such as to enable the suspect to make an informed choice as to whether or how to respond to the allegation or to invoke their procedural rights;
  • Advising the suspect to remain silent until such information is provided. This might involve advising a suspect not to speak until the case file has been disclosed, if this only happens later under national law, enabling the suspect to provide an informed response to the allegations;
  • If questioning is undertaken, ensuring that it respects procedural requirements (length, breaks, availability of drinking water, lighting, positioning of the persons present, formulation of questions, etc.); challenging irrelevant questions or advising the suspect not to answer specific questions; and asking additional or clarifying questions;
  • Assessing the need for interpretation and, if an interpreter is appointed for consultation with counsel and/or questioning, verifying the credentials of that interpreter and ensuring concerns are flagged regarding possible misinterpretations in order to ensure that a faithful record is made of the statements – whether exculpatory or incriminating – made by that person; and
  • Linked to all of the above, ensuring a record is kept of proceedings at the police station. This is essential in the absence of audio and/or video recording, leaving only the records compiled by the police. The lawyer’s presence ensures an alternative record is kept of proceedings, enabling courts to form an objective view as to the reliability of the evidence obtained or the need for remedial action. Conversely, if no lawyer is present, the courts may be unable to assess whether the evidence was fairly obtained, its reliability and the need for remedial action.

More generally, a lawyer’s presence at the early stages of criminal proceedings helps a suspect to understand their legal situation and the legal consequences of choices made at this crucial stage. The suspect may have questions about their procedural rights or the consequences of waiving them which they would be unwilling to ask a police officer in questioning. Without the assistance of a lawyer, any exercise of the right to a fair trial could be little more than theoretical and illusory for many suspects and accused persons.

Unit 1 – Problems within the EU

Despite the importance of the right to access a lawyer, particularly at the early stages of the criminal process, many suspects across the EU have faced serious challenges in exercising this right.

In 2013, Fair Trials held a series of meetings with members of LEAP, a network coordinated by Fair Trials, consisting of lawyers, NGO representatives, and academics from across the European Union. During these meetings concerns were raised about the ineffective protection of the right to access a lawyer in many Member States. Examples of these concerns can be found on the communiques from these meetings, which took place in BudapestVilniusParisLondon, and Amsterdam included the following:

  • As at June 2013, it was reported that in Malta, defence counsel was still not permitted to be present during the interrogation itself.
  • In Scotland, the practice of providing advice by telephone was said to be ineffective, since the advice to remain silent might be difficult to follow in the context of the interview itself.
  • In March 2014, the Madrid Bar had to publicly dismiss a complaint from the Spanish police suggesting lawyers had overstepped their role by advising clients to remain silent, a fact that demonstrates the incomplete recognition of the right among law enforcement agents in certain Member States.
  • In Poland, confidentiality of communications between lawyer and client was not always observed. While the evidence obtained in breach of confidentiality could not be used in court, this information could be used operationally and lawyers, knowing of the risk of surveillance, were inhibited in delivering advice to the client.
  • In France, practitioners reported that police proceeded with interrogations of suspects at the police station in the absence of a lawyer, if the lawyer did not arrive within two hours after being called.
  • In Sweden, there was no strict exclusionary rule for evidence obtained without a lawyer present, and defence lawyers were left to argue that the evidence is less reliable and should be ignored by the Court on that basis. In practice, because there were systemic problems with a lack of fully reasoned decisions, it was difficult to know exactly how much weight was assigned to various pieces of evidence, some of which may have been tainted by unlawful collection methods.
  • The laws in Bulgaria provide for effective access to a lawyer but in practice there were numerous problems. The police are reluctant to help suspects find a lawyer, and where they did, they often recommended someone with whom they work closely. There is no right to appeal against a refusal of access to a lawyer.

These examples illustrate some of the reasons why despite the case-law of the European Court of Human Rights and other international standards, it became necessary for the EU to legislate on this very important aspect of the right to a fair trial.

Module 3 International and Regional Standards

International Standards

As explained earlier, the right to access legal assistance is often regarded as the ‘gateway’ fair trial right in criminal proceedings, and it is enshrined in several international and regional human rights instruments. For example, under Article 14(3) of the International Covenant on Civil and Political Rights:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: […]

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; […]

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

Similar provisions can be found in regional and continental human rights treaties, including the American Convention on Human Rights (at Article 8(2)(d)), the African Charter on Human and Peoples’ Rights (at Article 7(1)(c)), the Arab Charter on Human Rights (at Article 16 (4) and (5)), and Article 6(3) of the European Convention on Human Rights (which is discussed in more detail below).

These provisions safeguard the right of access to a lawyer in vague terms, leaving many important questions about this crucial right unanswered. For example, it is unclear from these broad formulations at what stages of criminal proceedings suspects and accused persons should be given access to a lawyer, what types of assistance lawyers should be able to provide, and about the circumstances under which this right can be waived or be subject to justified derogations. In particular, they provide only limited guidance about the ways in which the right of access to a lawyer should be protected at the earliest stages of the criminal process, when suspects and accused persons are most vulnerable to violations of their fair trial rights.

It should be noted however, that most of the monitoring bodies of the treaties identified above, including the UN Human Rights Committee (e.g. Concluding Observations: Georgia, UN Doc. CCPR/C/79/Add.75 (1997)), the African Commission on Human and Peoples’ Rights (e.g. Liesbeth Zegveld and Mussie Ephrem v. Eritrea (250/2002), and Part 1(4),  Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (the ‘Luanda Guidelines’)), and the Inter-American Court of Human Rights (e.g. Barreto Leiva v. Venezuela (2009)) have recognised that the right of access to a lawyer applies at the pre-trial stages

Unit 1: ECHR and ECtHR Case Law

Overall fairness and Article 6(3) guarantees

It is important to bear in mind that fair trial principles under Article 6 ECHR are developed by the ECtHR which rules on cases in a subsidiary capacity. In line with Article 1 of the ECHR, it falls to the Contracting States to secure the rights under the ECHR for those within their jurisdiction; the ECtHR mechanism is therefore available only when internal remedies have been exhausted. In the specific context of Article 6, this means that a criminal trial (in general) has to have taken place before it can be decided whether it was fair or not. The ECtHR has developed a consistent line of principle according to which it looks at the whole procedure to make that assessment:

Pishchalnikov v. Russia, App. No 7025/04 (Judgment of 24 September 2009)  – Compliance with the requirements of fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of the isolated consideration of one particular aspect or one particular incident.

In this context, the specific rights set out in Article 6(3) of the Convention – such as the right of access to a lawyer guaranteed by Article 6(3)(c) – are generally not seen as self-standing norms but specific aspects of the general right to a fair trial contained in Article 6(1), and are factored into the assessment of the fairness of the proceedings as a whole:

Bandaletov v. Ukraine App. No. 23180/06 (Judgment of 31 October 2013), at para. 54 – The guarantees in paragraph 3 (c) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings.


Article 6(3) ECHR and trial stage issues

If an issue is raised under Article 6(3) concerning something that happens at trial, the overall fairness assessment will be focused on the court proceedings. Thus, it is common for the ECtHR to find violations of Article 6(3)(a) (the right to be informed of the charge) due to the late reclassification of an offence by a trial or appeal court vis a vis what was originally alleged in an indictment, leaving the person with no possibility to be heard in respect of the reclassified allegation.

This may, equally, apply in relation to the right of access to a lawyer under Article 6(3)(c). Thus, for instance, in 2016 the ECtHR found the United Kingdom in violation of Article 6(3)(c) ECHR due to a failure to provide access to a lawyer in proceedings for committal of a person to prison for contempt of court (proceedings which are considered criminal due to the penalty at stake). The person had no legal representation and thus no ability to exercise rights available to them in those proceedings.


Article 6(3) ECHR and pre-trial issues

For present purposes, however, the focus is on pre-trial issues, not least what happens at the police station. It follows from the overall fairness approach that specific issues relating to Article 6 arising in the pre-trial phase can be relevant under Article 6 only where they have an impact upon the fairness of the proceedings as a whole, including the court proceedings:

Imbriosica v. Switzerland App. No 13972/88 (Judgment of 24 November 1993), at para. 36 – Certainly the primary purpose of Article 6 as far as criminal matters are concerned is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, but it does not follow that [Article 6] has no application to pre-trial proceedings (…) Other requirements of Article 6 – especially of paragraph 3 (art. 6-3) – may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them.

The result of this approach is that the ECtHR will take account of what takes place at the pre-trial stage in the specific areas governed by Article 6(3), but it will do so only once the national proceedings are over when it can assess the overall impact of the pre-trial issue. Essentially, if something goes wrong in the initial stages, primary responsibility rests with the Contracting States to put it right, and the ECtHR will step in only afterwards. As a result, ECtHR complaints under Article 6(3) brought when the criminal case is still ongoing will usually be dismissed as inadmissible.

Casse v. Luxembourg App. No. 40327/02 (Judgment of 27 July 2006) is a rare example of a case in which the ECtHR found a violation of a specific guarantee of Article 6(3) in isolation. Fair Trials sought to persuade the ECtHR to follow this approach more generally in the case of Candido Gonzalez Martin v. Spain App. No. 6177/10 (see the intervention) but it declined to do so. Casse v. Luxembourg should probably be seen as an outlier. It is arguably more akin to a finding of a violation of the right to a trial within a reasonable time due to the failure ever formally to initiate proceedings at all.

The above point underlines that principles under Article 6(3)(c) concerning the right of access to a lawyer at the early stages of criminal proceedings will, by definition, be developed by reference to the proceedings as a whole. This is reflected in the core statement in Salduz v. Turkey which we will consider below: the violation of Article 6 – in the sense of the ECtHR finding a country in violation of the ECHR – only happens when the national system fails to remedy the earlier failure to provide access to a lawyer. So there is not, and essentially cannot be, a self-standing violation of Article 6(3)(c) arising from something that happens early in the proceedings alone. As we will see later, there may be an interest in arguing for a slightly different approach under the Directive.


The right to silence under Article 6

Before considering the core principle around Article 6(3)(c), it is important to remind oneself that the right to silence is also protected by Article 6. Although it is not specifically mentioned in Article 6(3), the ECtHR has consistently recognised that it forms part of the requirements of a fair trial:

Pishchalnikov v. Russia, at para. 71 – The Court also reiterates that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.

This is important to bear in mind for present purposes because of the function the ECtHR sees in the role of the lawyer: it is – not exclusively, but in particular – to ensure respect for the right of the suspect not to incriminate himself. This is the clearest reason why early violations of the right of access to a lawyer should be remedied in the way incriminating statements made in the absence of a lawyer are handled, and why only exclusionary rules may be effective for this purpose. We will come back to this in the discussion concerning remedies below.


The core principle in Salduz v. Turkey

Against the above legal framework, the ECtHR reached its decision in the key case of Salduz v. Turkey, on which this training module will place a significant focus:

Salduz v. Turkey App. No 36391/02 (Judgment of 27 November 2008), at para. 55 – 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 (…) The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

We will return to this principle. At this point it is useful to bear in mind this summary of key points arising from the above in terms of the approach to Article 6 violations at the ECtHR:

  • The ECtHR’s own role under Article 6 is to assess the fairness of the proceedings as a whole.
  • Article 6(3) requirements, and the right to silence, are relevant before the trial stage.
  • However, in order to establish a violation of Article 6, it must be demonstrated that the defence rights issue arising at the pre-trial stage prejudiced the overall fairness of proceedings.

In the case of the right of access to a lawyer, a violation of Article 6 in principle takes place where (a) access to a lawyer is not provided as from the first interrogation and (b) incriminating statements obtained in absence of a lawyer are used for a conviction.

Unit 2: The EU Directive and other overlapping measures

OVERVIEW OF THE DIRECTIVE

Although the main focus of this Directive is the right of access to a lawyer in criminal proceedings, it has a very broad remit, and it also contains provisions regarding the right to have third persons and consular officials notified about the deprivation of liberty, and the right of access to a lawyer in European Arrest Warrant (EAW) proceedings.

The wording of the Directive suggests that as a general rule, the Directive does not provide ‘guarantees’, but facilitates ‘opportunities’ that enable crucial fair trial rights to be exercised. For example, the right of access to a lawyer under the Directive means that Member States should facilitate the exercise of this right, and not put in place any impediments to compromise this right, but it is not required to guarantee that a lawyer will be made available for the individual.

The main provisions of the Directive are summarised in the table below, with references to corresponding paragraphs of the recitals:

Provision

What it covers

Particular Aspects

Article 1

Subject Matter

• Lays down rules concerning the right of suspects and accused persons in relation to their rights in criminal proceedings and to the accusation against them, and of individuals subject to European Arrest Warrant (EAW) proceedings the right to access a lawyer, to have a third party informed about the deprivation of liberty, and to communicate with third persons and consular authorities while deprived of liberty.

Article 2

Scope

• Applies to criminal proceedings, and for the purpose of Article 10 of the Directive, proceedings for the execution of an EAW.

• Applies from the time persons are ‘made aware by the competent authorities … that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings’.

• Where minor offences are sanctioned administratively and only the appeal is before a court, the Directive applies only to a court that has jurisdiction over criminal matters (Recitals 17 and 18).

Article 3

Right of Access to a Lawyer in Criminal Proceedings

• Right for suspects or accused persons to have access to a lawyer ‘without undue delay’ (Recital 19). Suspects or accused persons should be given access to a lawyer from whichever the following points is the earliest: 
◦ Before questioning by a law enforcement or judicial authority;
◦ Upon the carrying out by a competent authority of an investigative or other evidence-gathering act;
◦ Without undue delay following the deprivation of liberty; and
◦ Where they have been summoned before a court, in due time before their appearance in court.

• Right of access to a lawyer entail the following:
◦ To meet in private and communicate with the lawyer, including prior to questioning (Recital 23);
◦ To have the lawyer present and participate effectively when questioned (Recital 25); and
◦ To have the lawyer attend investigative or evidence-gathering acts in which the suspect or accused person is required or permitted to attend, including identity parades, confrontations, and reconstructions of a crime scene. (Recital 26)

• Member States to make information available that would facilitate the obtaining of legal assistance. (Recitals 27 and 28)

• Derogations (in exceptional circumstances and only at the pre-trial stage):
◦ Individuals deprived of their liberty may be refused access to a lawyer without undue delay, if this is not possible on account of geographical remoteness. (Recital 30) 
◦ Member States can derogate temporarily from the obligation to protect the right of access to a lawyer to the extent that this is justified in the particular circumstances of the case where there is an urgent need to avert serious adverse consequences for the life, liberty, or physical integrity of a person (Recital 31), or it is needed to prevent substantial prejudice to investigations. (Recital 32)

Article 4

Confidentiality

• Member States to respect the confidentiality of communication between suspects and accused persons and their lawyer. This includes meetings, correspondence, and telephone conversations. (Recitals 33 and 34)

Article 5

The right to have a third person informed of the deprivation of liberty

• Right for suspects and accused persons deprived of their liberty to have at least one person (e.g. a relative or an employer) informed of their deprivation of liberty, without undue delay. (Recital 35)

• Requirement for an appropriate adult to be notified of the deprivation of liberty, if the suspect or accused person is a child. (Recital 55)

• Derogations on the basis of the need to avert death, serious injury or physical integrity of a person, or in order to protect the integrity of criminal investigations.

Article 6

The right to communicate, while deprived of liberty, with third persons

• Right for individuals deprived of their liberty to communicate with a third person of their choice without undue delay. The exercise of this right can be limited or deferred. (Recital 36)

Article 7

The right to communicate with consular authorities

• Right for individuals deprived of their liberty to have consular authorities of their country informed about the deprivation of liberty without undue delay and to communicate with them. (Recital 37)

• Right for suspects and accused persons to be visited by consular authorities, and to communicate with them.

Article 8

General conditions for applying temporary derogations

• Temporary derogations from the right to access a lawyer, and the right to have third parties informed of deprivation of liberty have to be:
◦ Proportionate;
◦ Strictly limited in time;
◦ Not exclusively based on the seriousness of the crime; and
◦ Not prejudice the overall fairness of the proceedings (Recital 38)

• Temporary decisions have to be made on a case-by-case basis by a judicial authority, or by another competent authority, on the condition that the decision can be subject to subsequent judicial oversight.

• Derogations to the right of access to a lawyer have to be recorded.

Article 9

Waiver

• Waivers to the right of access to a lawyer (both in criminal proceedings and in EAW proceedings) are subject to the following safeguards:
◦ The individual should be given clear and sufficient information in simple and understandable language about the content of the right concerned, the implications of waiving it (Recital 39); and
◦ The waiver has to be given voluntarily and unequivocally.

• Waiver can be made in writing or orally, and it must be recorded (Recital 40)

• Right to revoke the waiver at any point during the proceedings. Member States to ensure that suspects and accused persons are given information about their right to do so (Recital 41).

Article 10

The rights of access to a lawyer in EAW proceedings

• Member states to ensure that an individual subject to EAW proceedings has access to a lawyer in the executing state, upon arrest pursuant to the EAW. (Recital 45)

• Right to access a lawyer in the executing state in such time and in such a manner as to enable requested persons to exercise their rights effectively. (Recital 42)

• Right to meet and communicate with the lawyer in the executing state. (Recital 43 and 44)

• Right for lawyer to be present and participate in hearings in the executing state.

• Competent authorities of the executing Member State to inform requested persons about their right to appoint a lawyer in the issuing state, without undue delay after the deprivation of liberty. (Recital 46)

• The role of the lawyer in the issuing state is to assist the lawyer in the executing state by providing information and advice relevant to the requested person’s exercise of their rights. (Recital 46)

• Competent authorities of the issuing state to provide information to facilitate the appointment of a lawyer in the issuing state. (Recital 46)

Article 11

Legal Aid

• The Directive is without prejudice to national law in relation to legal aid. (Recital 48)

Article 12

Remedies

• Right to an effective remedy under national laws. (Recital 49)

• Member States to ensure that in the assessment of statements made in absence of a lawyer in accordance with Article 3(6), the fairness of the proceedings and rights of the defence are respected. (Recital 50)

Article 13

Vulnerable Persons

• Member states to ensure that particular needs of vulnerable persons are taken into consideration. (Recital 51)

Article 14

Non-regression clause

• Directive does not limit safeguards arising under international or national law offering higher level of protection. (Recitals 52, 53 and 54)

Article 15

Transposition

• The deadline for transposition of this Directive is 27 November 2016.

Unit 3: The ECHR Baseline

You will be well aware of the ‘classic’ case of a violation of the right of access to a lawyer which lies at the heart of the principles we are concerned with: a suspect is questioned by police without a lawyer, who is consequently not present to help the suspect enforce their right to silence; the suspect, as a result, makes an incriminating statement which is recorded; and this statement is used against him later in the proceedings.

Salduz v. Turkey App. No 36391/02 (Judgment of 27 November 2008) provides an example: a young suspect was arrested by police on suspicion of terrorism charges and was not given access to a lawyer (no such right existed under national law at the time). He admitted certain conduct alleged against him, but later retracted these statements. Later, the court, in assessing the merits of the case, took into account his earlier statement and found him guilty of the offence.

Little more need be said about this, but we think it useful to break it down into two stages:

(1) The violation of the right of access to a lawyer, which takes place at the point the right is not guaranteed, typically during police questioning; and

(2) The taking into account of the incriminating statements made in absence of a lawyer later, typically by the court deciding upon guilt or innocence.

As will be seen later, the ECHR approach needs both: there can be a violation of the right to a lawyer, but this will not produce a violation of Article 6 ECHR overall if the statement is not used in evidence because a remedy is duly applied (eg. exclusion of evidence). This general approach seems to be retained for the purposes of the Directive, though with some possible subtleties as we will see.


The ECHR Baseline 

The core Salduz principle

We saw earlier the core statement concerning violations of Article 6(3)(c) in so far as that provision concerns restrictions on the right of access to a lawyer in the early stage of criminal proceedings:

Salduz v. Turkey, at para. 55 – 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 (…) The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

The statement establishes a rule with two parts: (i) access to a lawyer is required as from the first interrogation by police; and (ii) use of incriminating statements made without access to a lawyer for a conviction infringes Article 6 ECHR. As we will see below, Article 3 of the Directive seeks to articulate the first part as a rule of EU law; Article 12 reflects the second part by requiring remedies in respect of statements made in the context of violations of that rule.

The core principle, developed

a. Access to a lawyer: the content of that right

Exactly what ‘access to a lawyer’ means depends largely upon the role of the lawyer. This was expressed (somewhat obliquely) by the ECtHR in Dayanan v. Turkey App. No. 7377/03 (Judgment of 13 January 2010) soon after Salduz:

Dayanan v. Turkey, at para. 32 – An accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned. Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. (…) Counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.

Sometime later came the case of A.T. v. Luxembourg App. No. 30460/2013 (Judgment of 14 September 2015), in which Fair Trials intervened. It established that the right of access to a lawyer includes the right to a private consultation prior to questioning by the investigative judge:

A.T. v. Luxembourg, at para. 86 – The Court emphasises the importance of a consultation between counsel and client before the first questioning by the investigative judge. It is at this point that crucial discussions can take place, even if this means no more than counsel reminding the person of their rights (…) Counsel must be able to provide assistance which is concrete and effective, and not only abstract by virtue of his presence (…) [our translation].

As will be discussed later in this training module, it remains to be seen to what extent limitations placed upon a lawyer’s ability to intervene and participate in questioning may lead to violations of Article 6. Arguments about this before national courts will currently be better anchored in the Directive.


b. ‘Incriminating statements’

The concept of an ‘incriminating statement’, the use of which for a conviction will infringe Article 6, is, in a classic case, fairly simple. For example, in Salduz and many subsequent cases, the ECtHR has dealt with confessions by the persons charged, who effectively admit committing the offence.

However, it is important to bear in mind that there may be more to the concept than this. In particular, statements not directly incriminatory per se may be adverse to a person’s defence if they are used in that way (eg. denials in different terms which are contrasted to impugn a suspect’s credibility). The ECtHR recognised this in the context of criminal proceedings where use was made of earlier statements obtained under non-criminal compulsory powers:

Saunders v. United Kingdom App. No 19187/91 – Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature – such as exculpatory remarks or mere information on questions of fact – may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful.

The case of A.T. v. Luxembourg is an example of denials of an offence within criminal proceedings (specifically, in police questioning) being used in this way to show the accused was telling different versions of his story and to undermine his credibility. What still remains to be clarified is the extent to which it may also apply to evidence (e.g. from an identity parade), where there is no communicative information from the suspect at all. This may, again, be an area where the Directive has more to offer than the existing ECtHR case-law.


c. ‘Used for conviction’

As established above, the violation of Article 6 arises only where the incriminating statement obtained in the absence of a lawyer is ‘used for a conviction’. This is, sadly, an area where there is ambiguity in the case-law which, eight years after Salduz, is still unresolved.

Fair Trials has put forward an assessment of the case-law in this area in our intervention in A.T. v. Luxembourg. There may be other readings of the case-law, but the different approaches identified were the following:

  • Incriminating statements may not ‘have a bearing’ upon the merits decision.
  • All effects of the defence rights infringement had to be ‘completely undone’

There was a third approach that suggested that evidence obtained in breach of Article 6(3)(c) could be used if it were not the central platform amid a complex of evidence. This approach was used in the Chamber judgment of Dvorski v. Croatia App. No. 24703/11, which Fair Trials criticised. This judgment was subsequently reversed by the Grand Chamber (Judgment of 20 October 2015).

In this area, there is scope for argument both under the existing ECtHR case-law and the Directive and it remains to be settled whether an incriminating statement obtained without a lawyer can, in any circumstances, be used for a conviction in some way without infringing Article 6.

Unit 4: Relevant Provisions of the Directive

For simplicity, we will not dwell upon the numerous recitals in the preamble to the Directive. For the purposes of our general approach, it is sufficient to consider part of the content of Article 3, which sets out a rule articulating the Salduz right to legal assistance as from initial questioning:

‘2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:

 (a) before they are questioned by the police or by another law enforcement or judicial authority;

(…)

 3. The right of access to a lawyer shall entail the following:

 (a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;

 (b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned (…)’


There is more to say about each of these specific provisions and the content of the obligations they impose but it is clear that the Directive is imposing a requirement for access to a lawyer prior to and during police questioning – effectively, ‘access to a lawyer as from the first interrogation by police’ as required under the Salduz principle mentioned above. Accordingly, the failure to provide access to a lawyer at that stage will be a violation of Article 3. In that case, Article 12 applies:

‘1. Member States shall ensure that suspects or accused persons in criminal proceedings, as well as requested persons in European arrest warrant proceedings, have an effective remedy under national law in the event of a breach of the rights under this Directive.

2. Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer (…), the rights of the defence and the fairness of the proceedings are respected.’

The rule in Article 12(1) is a standard expression of general EU law. It is incumbent upon EU Member States to ensure an effective remedy for infringement of rights protected by EU law, as reflected in Article 47 of the EU Charter of Fundamental Rights. However, the concept of remedies is a broad one, and might typically include compensatory remedies before the civil courts.

Article 12(2) provides a little more detail as to what is required in criminal proceedings specifically. It refers to the assessment of statements made or of evidence obtained in breach of the right to a lawyer, pointing clearly to a specific remedy in the criminal proceedings which ensures such evidence is the focus of the remedy. As we will set out below, this is the ‘hook’ or mechanism by which to enforce the Directive when it is not complied with at the earlier stage.

Unit 5: Using the Directive in practice

Assumption: direct effect of Article 3 and Article 12

It is possible that violation of the Directive will happen because national law prescribes this. Suppose, for instance, that national law grants a suspect the right to consult with a lawyer, but excludes the lawyer from the questioning itself (as was the situation in the Netherlands until March 2016). In that situation, you will not be able to establish a violation of national law so as to claim any sanctions available under national law. So, in order to enforce your right, you need to rely directly on the Directive, relying on its ‘direct effect’ as a measure of EU law.

Article 3 imposes requirements which, in our opinion, are sufficiently clear and precise to have direct effect. They are obviously intended to create enforceable rights for individuals. Article 12, likewise, should be assumed to have direct effect as it is an expression of the general right to an effective remedy protected by Article 47 of the Charter, which is directly applicable. See the Using EU Law Toolkit for more on direct effect of directives. In any case, the Articles 47 and 48 of the Charter of Fundamental Rights (right to a fair trial and rights of the defence) are directly applicable and there is no doubt you can invoke that.

  • Take as your starting point that the relevant provision of Article 3 of the Directive (e.g. entitlement to a private conversation with the lawyer) has direct effect. If need be, contact Fair Trials for further assistance.
  • Take as your starting point that Article 12 has direct effect. It can be invoked together with Article 47 of the Charter as a basis for claiming a remedy for the violation of Article 3 of the Directive.

The core device: Article violation – Article 12 remedy

Below we will consider different possible kinds of violations of the right of access to a lawyer (eg. outright absence of a lawyer; restriction of possibilities to consult effectively; restrictions on the lawyer’s participation in questioning). But in order to challenge these sorts of violations we need to consider the key tool you can use where you believe a violation is taking place. In the case of a violation of the right of access to a lawyer protected by Article 3 of the Directive, Article 12 requires a remedy. Accordingly, in order to use the Directive, you need to (a) establish that the violation has taken place; and (b) seek a remedy before the trial court (or another forum).


a. Establishing a violation of Article 3

There are manifold ways in which a violation of Article 3 might occur. National law may provide for access to a lawyer but this may not have been followed in the case. National law may not provide access to a lawyer in a certain context. National law may define the lawyer’s intervention in a way which you see as narrower than the content of the right in the Directive.

We will consider these later in their own sections but the point is that, whatever the violation at issue, you need to establish that it has taken place, and ideally establish it as early as possible as an issue under the Directive. Members of the collective Asociacion Libre de Abogados in Spain, for instance, made a point of referring explicitly to the Directive when attending police questioning and disputing the limits Spanish police sought to impose upon them. We would suggest:

  • Establish how you say the Directive has been infringed.
  • Identify the issue in terms of the Directive (e.g. refusal to provide access to a lawyer in a customs interview because the procedure there does not foresee it).
  • If you are present at the time of the questioning (e.g. you are not able to consult privately with the client before questioning), you should ensure this is identified as an issue in terms of the Directive at the point at which it arises. Take the approach of the Asociacion Libre de Abogados and ensure the relevant authority records your protestation based on the Directive.
  • If you are not present at the relevant time (e.g. the person was denied the right to call you at all), ensure at the first opportunity that this is identified and recorded as an issue under the Directive.

b. Seeking a remedy under Article 12

i. The evidence in question

Article 12 is a broad provision which requires interpretation by the CJEU. Fair Trials consulted LEAP (a network of criminal defence practitioners, NGOs and academics from across the EU), who came up with the following working assumptions.

First, the requirement for an effective remedy necessarily implies that the remedy be sought before a court. Though Article 12(1) does not refer specifically to a judicial remedy, Article 47 of the Charter requires an effective remedy before an impartial tribunal, and a simple prosecutorial challenge would not meet this requirement. It is true that there are areas in which the CJEU has seen non-judicial remedies as sufficient but in the context of the protection of fundamental rights, effective judicial protection is a general principle of the EU legal order and it simply cannot be asserted that such an issue could be resolved otherwise than by access to a court capable of delivering an effective remedy.

In terms of the type of remedy the court must offer, Article 12(2) points clearly to the use of evidence obtained in breach of the right of access to a lawyer, showing that remedies must be applied in the context of ‘the assessment of statements’ made by the suspect or accused or of evidence obtained by the breach. The most typical context to which this refers is the decision-making as to the merits of the accusation (though see the comments in the Using EU Law Toolkit about pre-trial remedies). It seems relatively clear from the wording of Article 12(2) that the provision is pointing to systems of remedies which relate to the admission of evidence.

Bear in mind the ECtHR’s view that the role of the lawyer is (in particular) to ensure respect for the suspect’s right not to incriminate himself. The prejudice in a breach of Article 3 of the Directive arises from the collection of evidence from the suspect without that protection. It follows that only a remedy which prevents that evidence being taken into consideration is ‘effective’ in the meaning of Article 47 of the Charter. If remedies in national law (e.g. exclusion of evidence or nullity) achieve this, they will be effective. If they do not (e.g. merely declaratory remedies or where the court is able to factor the evidence into its decision, notwithstanding the breach) they may not be and the court will have to use the Directive and Charter as a basis for removing the evidence from consideration.

Again, these are all simply ideas emanating from the LEAP network, and you have to decide whether you agree. But we believe they are correct. On that basis only we suggest:

  • Claim a remedy in respect of the violation of the Directive.
  • Argue:
    • Article 12 requires an effective remedy for infringements of the rights protected by Article 3 of the Directive, an expression of the general obligation on Member States to provide effective judicial protection of EU law rights under Article 47 of the Charter. In order to be effective, such a remedy must have the effect of restoring the fairness of the proceedings and reversing the harm done by the collection of evidence in breach of the right of access to a lawyer.
    • Accordingly, the relevant act should be declared null, or the evidence obtained as a result of the breach excluded if these remedies are available under national law.
    • If there is no such remedy (eg. in Sweden), Article 47 requires the court to take no account of evidence obtained in breach and avoid its decision being based upon it directly or indirectly. The court is under a duty to do everything that lies within its jurisdiction to ensure the useful effect of EU law. However it achieves it, the end result must be that the evidence is not taken into consideration for a conviction.

ii. Fruit of the poisoned tree

In order to ensure the full effect of the Directive, should national remedies also extend to the ‘fruit of the poisoned tree’? By that term we understand the doctrine according to which evidence obtained by virtue of a previous infringement (eg. physical evidence obtained after a confession made following a breach of the right of access to a lawyer) should be treated as if it were itself obtained in violation of defence rights. This is one of the questions that will be examined by LEAP’s Judicial Remedies Working Group led by LEAP member Vania Costa Ramos, to begin its deliberations in 2016, which will be reported on in due course. For now, our assumption is that the fruit of the poisoned tree doctrine applies: the Directive would be deprived of effect without it. So:

  • Argue:
    • The Directive would be deprived of useful effect if the fruit of the poisoned tree (that is, evidence obtained as a result of violations of Article 3) were not treated in the same manner as the contaminated evidence itself. Nullity and exclusionary rules should operate to remove this evidence from consideration too.

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Some specific areas to explore

The above is an outline sketch of how the Directive can be used when the application of national law does not yield the desired result. From that starting point, you can use the Directive in different situations that may arise in your cases. There are many situations in which you might wish to invoke the Directive. We cannot cover them all here. However, to give you some ideas, we provide some examples below of particularly interesting areas where you could explore using the Directive.

a. Effective participation in questioning

Following Salduz, further cases were brought which enabled the ECtHR to establish what was meant by the requirement for access to a lawyer ‘as from the first interrogation by police’. One of those is a line of case-law including Navone and Others v. Monaco Apps. Nos 62880/11 and others (Judgment of 24 October 2013), in which the ECtHR specified that this means assistance during questioning:

Navone and Others v. Monaco, at para. 79 – The  Court underlines that it has several times specified that assistance by a lawyer during police custody should be understood, in the meaning of Article 6 of the Convention, as assistance “during questioning”, and this as from the first questioning [our translation].

Implementation of this principle has not been straightforward. We noted in the Using EU Law Toolkit that the Dutch Supreme Court had, at the time of publication of that document, taken the view that the right of the lawyer to be present in questioning under Dutch law, despite the above case-law which appears fairly clear. In December 2015, it reversed its position, finding that there was a right for a suspect to have their lawyer present in questioning. It appears that one of the main reasons for this was the inevitability of that development happening anyway because of the Directive.


The next phase in this discussion seems likely to focus on the extent of the lawyer’s participation in questioning. The ECtHR case-law has not, to our knowledge, covered this point in detail and the Directive may provide a useful basis for argument if restrictions are placed on lawyers’ intervention in your Member State. Article 3(3)(b) of the Directive provides:

3. The right of access to a lawyer shall entail the following:

(…)

(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;

Recital 25 in the preamble to the Directive essentially repeats the content of the operative provision but includes one additional detail:

(25) (…) During questioning by the police or by another law enforcement or judicial authority of the suspect or accused person or in a court hearing, the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification and make statements, which should be recorded in accordance with national law.

If the issue concerns your participation in questioning, it must be the case that you are physically present at the point of questioning (as opposed to the sort of violation which results in your being absent outright). This means that there is action that you can take at that point to try to ensure that the violation of the Directive is properly identified as such at that stage, so at to rely on this later.


i. Identify and document the violation

What are you looking for? What constitutes a violation? The provision includes the standard reference to national law, so it is clear that the Directive is not setting exhaustive rules about participation in questioning: this is left to each system. However, there is also a requirement to ensure that such procedures do not prejudice the effective exercise and essence of the right concerned. What is meant by ‘the right concerned’ is not totally clear. But it should be borne in mind what is already established about the role of the lawyer – including, but not limited to, securing the suspect’s right to silence and not to incriminate himself (see the ECtHR case-law discussed above).

It seems particularly arguable that limitations upon the lawyer’s participation which, in effect, prevent the lawyer protecting the suspect’s right to silence and not to incriminate himself would be inconsistent with the Directive. This would include, in particular, rules which mean a lawyer is unable practically to advise silence (as such) in questioning. This seems particularly important where a lawyer’s initial advice, in private consultation, is to advise silence; if the effect of the questioning is to cause a suspect to change their mind and give evidence, particularly self-incriminatory evidence, any restrictions placed upon the lawyer’s role would be particularly worthy of consideration.

But you should also bear in mind the broad meaning of ‘incriminating statements’ identified above (including denials, statements of facts etc.). If the lawyer identifies issues (eg. an answer given which could potentially be used against the suspect) but is not able to address it through his participation, this might raise an issue too. You would, in particular, expect this to be addressed in the treatment of the evidence obtained in this way (see the comments on Article 12 below).

We would suggest that you look both at the law and how it is applied in your case.

  • Look at the law:
    • Does the national rule fundamentally limit the lawyer’s ability to participate?
    • Is the lawyer’s freedom to intervene clearly articulated in the law?
    • Does the national rule provide powers for excluding the lawyer on the basis of their interference with the questioning?
  • Look at what actually happens in the questioning:
    • Do the questions lead to the suspect departing from his initial choice to remain silent?
    • Are you able to advise the client not to answer specific questions?
    • Are you able to ask clarificatory questions in respect of areas where the answers given by the suspect risk being considered incriminatory?

These are ideas about what to look for in terms of how the restriction on your participation may result in a breach of the suspect’s rights. There is then a separate question as to what steps you wish to take to ensure your concerns are noted. The main point here, we suggest, is to ensure that the fact of the interference with your participation and its incompatibility with the Directive is noted at this stage whilst being mindful of the need to protect the privilege of your own advice.

  • Get the issue recorded
    • Take a clear note of any intention expressed by the client not to answer questions during the questioning.
    • Take your own notes of ways in which your participation is impeded.
    • Have a copy of the Directive with you and show the officer Article 3(3)(b).
    • Note the questions which you might have wanted to ask to clarify those of the questioning authority, or objections you had to the phrasing of certain questions, if you were not allowed to make these.
    • Ask for your observations to be noted clearly in the records taken by the questioning authority, including references to the Directive if possible.

ii. Seek remedies for the infringement

As noted above, the appropriate remedy for the infringement of the right of access to a lawyer should be (at a minimum) one which ensures the relevant evidence is not taken into account for the purposes of a conviction. To the greatest extent possible, the argument has to be that the limitation on the lawyer’s participation is, in effect, equivalent to denying the lawyer’s presence outright and should lead to a similar consequence.

  • Seek a remedy (see earlier comments / the Using EU Law Toolkit)
  • Argue:
    • The lawyer has a wide-ranging role which, in the particular context of police questioning, relates in particular to the protection of the suspect against infringements of his right to silence and against self-incrimination (see the Salduz and Dayanan cases). The limitations placed upon the lawyer’s participation in this case (either due to the legal limits or the application of the law) meant that the lawyer was unable to exercise that function effectively.
    • There has therefore been a breach of Article 3(3)(b) of the Directive.
    • Accordingly, in accordance with Article 12, in the assessment of statements made by the suspect, the rights of the defence and fairness of proceedings must be respected. This should be read in light of the general case-law of the ECtHR according to which a breach of Article 6 occurs where incriminating statements obtained in absence of a lawyer are used for a conviction. The ECtHR has already made clear that the failure to enable a lawyer to be present in questioning will lead to a breach of Article 6 on that basis (Navone and Others v. Monaco). Due to the restrictions applied in this case, the position is comparable to the absence of the lawyer and incriminating statements must not be used for a conviction. Exclusionary / nullity rules must therefore be used to remove the statements from consideration altogether.
    • This includes directly incriminatory statements such as confessions. It also includes statements not directly incriminatory per se, but on which reliance can be placed to undermine the suspect’s credibility (T. v. LuxembourgSaunders). In order to ensure the fairness of the proceedings, these should not be relied upon in any way detrimental to the accused.

Unit 8: Impact on National Law

The ECtHR’s decision in Salduz has had a significant impact in the laws of many Member States, which have shown varying degrees of resistance in adopting reforms which expand the right to access a lawyer for suspects at the initial stages of the criminal process. More recently, the Directive has also begun to play a major role in pushing these reforms, even in cases where the judiciary previously demonstrated remarkable restraint in responding to the ECtHR jurisprudence.

(For a more in-depth analysis on variations in national responses to Salduz, see Dr Giannoulopoulos’s article ‘Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries.’)


The examples below demonstrate the different ways in which national laws have changed in recent years in light of Salduz:

Scotland

Prior to Salduz, suspects in Scotland who were detained in police custody for up to six hours but were not charged, did not have the right to legal assistance during that period, and the police were able to question suspects who had no access to legal advice.

In 2010, the UK Supreme Court applied Salduz in the case of Cadder v. HM Advocate [2010] UKSC 43 to conclude that a detained suspect must have access to legal advice before questioning. In response, Scottish government resorted to emergency measures and hurried legislation through the Parliament that afforded the right to detainees for a private consultation with a lawyer before any questioning could take place (Section 15A(3) Criminal Procedure (Scotland) Act 1995, as inserted by Section 1(4) Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010). There was no provision in this law that ensures that a lawyer must be present during the police interrogation, but this right was subsequently codified in section 32 of the Criminal Justice (Scotland) Act 2016.


Belgium

Under Belgian law, detainees were previously not entitled to access to legal assistance for a 24-hour period of questioning by the police or the investigating judge. The Court of Cassation of Belgium held that this was compatible with Salduz, so long as the ‘overall fairness of the proceedings’ were not prejudiced.

Following Salduz, the Belgian College of Public Prosecutors (collège des procureurs généraux) issued a provisional guidance aimed at providing the detainees with the right to legal assistance. Despite initial resistance, the government acknowledged the need for the reform, and it enacted the ‘Salduz legislation’ in August 2011, which provides the right to consult confidentially with a lawyer from the beginning of the interrogation, prior to and during police questioning.


France

Under French law, suspects were allowed only a 30 minute period in which they were allowed to consult their lawyers at the beginning of garde à vue (the detention and questioning of suspected offenders by the police), but they did not have the option of being supported by a lawyer during questioning.

Following decisions by the Constitutional Council and the Court of Cassation in France that relied heavily on Salduz, a new legislation was adopted in April 2011 (Loi n° 2011-392 du 14 avril 2011 relative à la garde à vue), which recognised the right of suspects to be assisted by a lawyer during questioning.


Ireland

The Supreme Court of Ireland made a crucial decision in March 2014, some six years after Salduzwas decided, on the right of access to a lawyer during police detention. Under Irish law, suspects under arrest did have the right to access legal assistance, but this was interpreted narrowly, to allow only ‘reasonable’ access.

In the case of DPP v. Gormley [2014] IESC 17, the Supreme Court relied not only on Salduz and the case-law of the European Court of Human Rights, but also of jurisprudence developed in common-law jurisdictions, including the United States of America, and recognised  ‘a right to early access to a lawyer after arrest’ and a ‘right not to be interrogated without having had an opportunity to obtain [legal] advice’. Even after the decision in Gormley, Ireland has yet to respond legislatively to ensure that its laws comply with Salduz and other international standards on the right to access a lawyer.


Netherlands

In the Netherlands, suspects had the right to consult a lawyer prior to questioning, but there was no recognition of the right to be assisted by a lawyer during questioning. This was confirmed by the Dutch Supreme Court as recently as April 2014, which took Salduz into consideration, but decided that it should be up to the legislator to make the necessary changes to the law that would entitle suspects to legal assistance during questioning.

Finally, in December 2015, the Dutch Supreme Court changed its position, and it held that from March 2016, all suspects should have the right to be assisted by a lawyer when they are being questioned by the police in line with the Directive. The Supreme Court noted that by November 2016, the Netherlands will be required to transpose the Directive, which would include the right of access to a lawyer during the interrogation. It was also conscious of the risk that criminal proceedings could be subject to preliminary references made to the Court of Justice of the European Union, where questions about the implementation of the Directive could be raised.

The developments in the Netherlands is an example of how the Directive can influence progressive legal reform, even in cases where Member States have failed to comply with established ECtHR case-law for one reason or another.

Module 4: Challenges in Practice

Waivers

We have already presented the ‘core issue’ and the ‘core device’ for situations where a violation of the Directive can actually be established (i.e. where access to a lawyer was denied). However, we focused on two more exploratory areas (participation of the lawyer in questioning, and cross-border issues) because it seems relatively unlikely that there will be that many straightforward violations of the Directive. By and large, national law in most Member States already does provide for access to a lawyer in questioning, and where violations arise there should be simple arguments available under the national procedural law so there will be little need to rely upon the Directive.

Much more common is the concern that the right, though available in law and practice, is ‘waived’ in circumstances which cast doubt upon the waiver’s reliability. This is one of biggest defence rights concerns raised by LEAP, a network of criminal defence practitioners, NGOs and academics from all Member States of the EU. The following concerns have been expressed:

  • The manner in which rights are notified means suspects do not sufficiently appreciate the importance of obtaining legal advice, or the consequences of renouncing the right.
  • Police incentivise the waiver of the right of access to a lawyer by emphasising the delays and complication that will arise from asking for a lawyer.
  • Rules of evidence ascribe irrebuttable probative value to police records indicating the waiver was given freely, so that it is impossible to argue otherwise.

The existing ECtHR case-law, reviewed below, includes fairly comprehensive standards requiring the waiver to be given unequivocally, knowingly and intelligently before it can be considered effective. However, it appears that at present national laws do not provide sufficient grounds for arguing that the waiver was ineffective. On its face, Article 9 of the Directive appears to do little more than reiterate the ECHR standard but we believe there are arguments worth exploring. It should be noted that this part overlaps to some extent with the Right to Information Directive; occasional reference is made below to existing comments in the Toolkit on the Right to Information Directive.


ECHR Baseline

The core principles are explained in Fair Trials’ Toolkit on the Right to Information Directive but we reproduce them here. These are principles applicable generally under Article 6: other fair trial rights, e.g. the right to be present at trial or the right to silence, can be waived too, and the principles below apply whatever specific right is waived. But, as the ECtHR itself notes (see below), they are particularly relevant in relation to the right of access to a lawyer protected by Article 6(3)(c).

Saman v. Turkey App. no 35292/05 (Judgment of 5 April 2011) – Neither the letter nor the spirit of Article 6 prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards (…) A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (…).

When procedural rights are not effectively conveyed to the suspect, the ECtHR finds that the waiver is not effective, as it considers that the decision to waive the right was not taken on a properly informed basis. Consequently, the reliance on statements obtained in that context then means prejudice is caused to the fairness of the proceedings as a whole. The court has pointed to various factors, both objective and subjective, relating to the notification of rights which affect the validity of a waiver of the right of access to lawyer and to counsel:

  • The fact that rights were notified in a language other than the suspect’s native language, without the assistance of an interpreter (Saman v. Turkey, at para. 35).
  • The fact of the notification being given only orally in the form of a standard caution (which barely serves the purpose of acquainting the suspect with the content of the rights) (Panovits v. Cyprus No 4268/04 (Judgment of 11 December 2008), at para. 74);
  • The ‘stressful situation’ and ‘quick sequence of the events’ leading to questioning of the suspect (Zaichenko v. Russia No 33720/05 (Judgment of 1 February 2007), at para. 55);
  • A ‘certain confusion’ in the mind of the suspect at the point of questioning (Stojkovic v. France and Belgium, No 25303/08 (Judgment of 27 October 2011), at para. 53);
  • The young age of the suspect (Panovits v. Cyprus, at para. 67);
  • Familiarity with police encounters (Pishchalnikov v. Russia No 7025/04 (Judgment of 24 September 2009), at para. 80); and
  • Drug dependency of the suspect. (Plonka v. Poland no. 20310/02 (Judgment of 31 March 2009), at para. 38).

In addition to the above there are some specific comments on the right to legal assistance specifically protected by Article 6(3)(c), which came in the recent case of Pishchalnikov v. Russia:

Pishchalnikov v. Russia, at para. 78 – The Court considers that the right to counsel, being a fundametal right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of Article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard.

A further instalment in this line of case-law came in 2015 with a judgment in the case of Zachar and Čierny v. Slovakia App. Nos 29376/12 and 29384/12 (Judgment of 21 October 2015),  in which Fair Trials intervened to underline the concerns raised by LEAP members around waivers of the right of access to a lawyer discussed above. The ECtHR reviewed the existing principles and made some significant factual findings:

Zachar and Čierny v. Slovakia, at para. 70 – The Court observes that any instructions as regards the applicants’ procedural rights were given to them via the first pages of the pre-printed forms on which their pre-trial statements had been transcribed. Such instructions went as far as informing the applicants, without providing any commentary or further explanation, that they had the right to remain silent and the right to choose a lawyer. Conversely, there has been no allegation or other indication that any individualised advice about their situation and rights was provided to the applicants.

Though it is not referred to specifically, the ECtHR had been referred to the Right to Information Directive in this case and it appears to have taken account of the absence of a separate document with information about rights (distinct from questioning transcripts) and it appears to have deemed it necessary for the applicants (who were facing potentially heavy penalties) to receive ‘individualised’ advice about their situation and rights.  This finding post-dates the Directive and may actually add usefully to the content of the Directive.


Watch Dr Giannoulopoulos speak on the effect of the Directive prior to its transposition deadline, and the importance of waivers:

Unit 1 – Relevant Provisions of the Directives – Waivers

The key provision of the Directive is Article 9, which appears largely based on the above case-law:

1. Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 (…):

(a) the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and

(b) the waiver is given voluntarily and unequivocally.

2. The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the Member State concerned.

3. Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made.


A little further detail is provided by recitals 39-41 in the preamble:

(39) Suspects or accused persons should be able to waive a right granted under this Directive provided that they have been given information about the content of the right concerned and the possible consequences of waiving that right. When providing such information, the specific conditions of the suspects or accused persons concerned should be taken into account, including their age and their mental and physical condition.

(40) A waiver and the circumstances in which it was given should be noted using the recording procedure in accordance with the law of the Member State concerned. This should not lead to any additional obligation for Member States to introduce new mechanisms or to any additional administrative burden.

(41) Where a suspect or accused person revokes a waiver in accordance with this Directive, it should not be necessary to proceed again with questioning or any procedural acts that have been carried out during the period when the right concerned was waived.

It is also worth bearing in mind paragraph 11 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused of in criminal proceedings:

11. If a vulnerable person is unable to understand and follow the proceedings, the right to access to a lawyer in accordance with [the Directive] should not be waived.


We make the following observations about these provisions:

  • Information has to be provided about the right ‘orally or in writing’. The Right to Information Directive governs the provision of information about right to suspects and is clear that, for a person deprived of liberty, information must be provided in writing as a Letter of Rights. We think that the information required in Article 9 of this Directive should be included within the written content of the Letter of Rights where the latter has to be given. The point of the Letter of Rights is to enable people to exercise their rights, and the possibility of waiving is part of that.
  • The Directive requires ‘clear and sufficient information’ about the ‘content of the right and the possible consequences of waiving it’. This adds to the general requirement of the notification of rights / Letter of Rights which has to be given under the Right to Information Directive. Whereas that measure regulated only the manner of delivery of the information, here the EU standard begins to govern its content, which must cover the content of the right and the consequences of waiving it. The aim of this part of Article 9, in our view, is obviously to ensure that the ‘knowing and intelligent’ waiver standard is adhered to by ensuring the suspect has the right information.
  • The requirement for the waiver to be ‘voluntary and unequivocal’ appears to reflect the general standard of the ECtHR case-law above. Article 9(2) requires the recording of the circumstances of the waiver in order to ensure that doubts arising as to its validity – including before the courts later – can be properly considered.

Unit 2 – Using the Directives in Practice – Waivers

What you essentially want to do with the Directive is challenge the admission or use of evidence which has been collected as a result of a waiver which you deem to be ineffective. The basic argument is that the absence of the lawyer is in fact a violation of Article 3, because the purported waiver was not compatible with Article 9; accordingly, remedies should be applied under Article 12.


Establishing what actually happened

You will be well familiar with the sorts of circumstances which clients will say led them to waive their right to a lawyer under national law: police pressure; indications of more lenient disposals if a lawyer is not sought etc. The key is to collect this information with the standards of the Directive in mind:

  • Find out from your client what happened and organise the information in light of the requirements of the Directive and underlying case-law:
    • Look at what substantive information was given. In many cases, you will be able to consider the Letter of Rights: does this adequately reflect the content of the right and the consequences of waiving it? For example, does it specify that a person would have the right to meet in private with their lawyer and discuss their case?
    • Look at the circumstances: bear in mind recital 39 of the Directive; the line of ECtHR case-law above; and the Commission recommendation on vulnerable suspects. Are there characteristics of the person which ought to have been taken into account in the assessment of a purported waiver?
    • Look at the record made. This is required to cover the ‘circumstances under which the waiver was given’. You would expect this to, for instance, confirm that the person was given a Letter of Rights and an opportunity to consider it; to address how account was taken of specific vulnerabilities of the accused (eg. whether a medical examination was carried out or the support of a third party sought).
    • Get your client’s version of events. This piece of evidence will be important for the purposes of challenging the validity of the waiver that is recorded. Find out who said what, in what context, how much of it was recorded etc.

Challenging the waiver

a. Where to raise the point

As noted above, the essential argument is that because the waiver is invalid, the absence of a lawyer is in fact an infringement of Article 3 of the Directive, so the evidence should be treated accordingly under Article 12 / the national remedies system. This is, therefore, a point that you will raise before the relevant court: a pre-trial instance, or the trial court itself if that is where procedural violations are addressed. The same arguments would equally feature in any appeal based on the Directive if the relevant first-instance forum takes an inappropriate approach to assessing the waiver.

  • Raise your points in the same place you would normally argue that the absence of a lawyer vitiates the procedural act concerned and the evidence obtained, wherever this be. The remedy you seek is the same.

b. The arguments to make

The arguments should, in our view, be two-fold: they should highlight any failures to comply with the safeguards specified in the Directive (failure to provide full information, take account of vulnerabilities etc.); and they should be based on the client’s own alternative record. These are essentially factual arguments (based on your review of the facts as above) but there are some general legal points which can be made:

  • Argue:
    • The ECtHR has already made clear that the right to counsel is a ‘prime example’ of a procedural right requiring the protection of the knowing and intelligent waiver standard, due to its role as a gateway right (see Pishchalnikov v. Russia).
    • The Right to Information Directive imposed a key safeguard around waiver by requiring provision of information on rights, in the form of a Letter of Rights if the person is deprived of liberty. In parallel, Article 9(2) of the Directive establishes that a waiver of the right to a lawyer cannot be valid unless prior information is given. It follows logically that the failure to comply with the Right to Information Directive (in particular the provision of a letter of rights) renders the waiver of the right of access to a lawyer invalid. The Right to Information Directive itself confirms that a Letter of Rights should be translated in accordance with Interpretation & Translation Directive, so provision of information in the suspect’s language should be seen as a precondition for a valid waiver.
    • Even if information is given, it must be ‘clear and sufficient’ under Article 9(2) and it must cover the content of the right and the consequences of waiving it. A mere notification that a person has a right to a lawyer will not suffice.
    • Article 9(2), read with recital 39, points towards an individualised recording of the circumstances of the waiver taking into account the suspect’s personal situation. The provision appears to aim to place the court in a position to satisfy itself, later on, that a waiver has been validly given in the specific case. The failure to take note of specific circumstances in the recording (eg. that the suspect understood he faced a potentially lengthy sentence) calls into doubt the validity of the waiver.
    • If the court cannot satisfy itself that the waiver is valid in the specific case, the absence of a lawyer should be treated as a breach of Article 3 and, accordingly, remedies applied pursuant to Article 12 of the Directive.

c. The issue of irrebuttable police records

LEAP members and attendees at Fair Trials trainings (particularly from France and Luxembourg) have often pointed to the issue of police records being treated as conclusive or irrebuttable: if the minutes say the right was waived, the contrary cannot be proved.

The structure of Article 9 points towards the need for an individualised record of the circumstances of the waiver, which can only be in order to enable the court to satisfy itself that the waiver is valid. This recognises that this may be a disputed fact. Procedural rules which prevent the calling of rebuttal evidence – even if the suspect gives a detailed and credible account – would appear problematic. We believe that the ‘effectiveness’ case-law of the CJEU may be relevant. An instructive example is the Opinion of Advocate-General Sharpston in Case C-187/10 Unal:

Case C-187/10 Unal concerned the exercise by a Turkish national of certain rights derived from an EU-Turkey agreement which forms part of EU law. His residence permit had been revoked retroactively on the basis that he was found, on the basis of local population records, not to have been living with the person mentioned in his permit when he sought an extension. His attempts to demonstrate that he was still living with the person at the relevant time (including a letter from the person herself) were rejected, as the records were essentially regarded as conclusive. The substantive issue before the court was whether the permit could be withdrawn retroactively, but the Advocate-General noted that the evidential issue fell to be assessed under the principles of equivalence and effectiveness, noting as follows [these are the standard statements]: ‘it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding [rights derived from EU law]. The Member States, however, are responsible for ensuring that those rights are effectively protected in each case. The detailed procedural rules governing those actions (…) must not render practically impossible or excessively difficult the exercise of rights conferred by EU law’. It was left to the national court to determine whether or not the rules it applied made it practically impossible for Mr Unal to prove he had lived where he said he did.

The above is an example of how the effectiveness principle may be brought into play by rules which make it impossible for a person to adduce the evidence needed to invoke their EU law rights. It is a case-by-case question of fact whether the national rule has this effect or not, but it seems clear that a similar approach could be applied here. If it is effectively impossible – because no evidence, however credible, can rebut the police protocol – the person may be deprived of an opportunity to challenge the waiver. An argument can be made to that effect:

Argue: A rule of national law which, in effect, renders the police protocol / minutes conclusive and prevents the leading of any evidence to the contrary should be regarded as incompatible with the principle of effectiveness if they render practically impossible the exercise of the right envisaged by Article 3 of the Directive. Such a rule has to be interpreted in such a way as to enable the person validly to dispute the waiver. If it cannot be so interpreted, it should be set aside.

Unit 3 – Derogations

Are there circumstances in which a person, despite wishing to be assisted by a lawyer, can be questioned without one? This is a live issue but the answer in the Directive appears to be that there are very limited circumstances in which this might happen.

This is not currently an issue which has raised major concerns within LEAP, save in some specific jurisdictions (Spain and the United Kingdom), but it appears particularly important in light of current threats facing Europe which may at the very least lead to the increased use of existing exceptions in national law or, potentially, the creation of further possibilities of this kind.

The issue is very simple: access to a lawyer is denied, meaning this key protection against self-incrimination is removed, but this time there is a legal basis for it. The key question is when this can be done, and what use may be made of the evidence obtained in the lawyer’s absence.


The ECHR Baseline

The core principle and debate

There is, at present, very little case-law upon which to rely for this purpose. The core statement in Salduz includes additional text (omitted earlier) relating to possible exceptions. In full, it reads:

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. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (…) The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

The statement openly recognises that there may be situations in which access to a lawyer might be validly refused. However, there is debate (as yet unresolved) as to the expression ‘in principle’. Does it mean that the rule is subject to an exception, whereby evidence obtained in the justified absence of a lawyer can validly be used for a conviction? Or does it mean that as an issue of principle, statements obtained in absence of a lawyer cannot be used for a conviction?


The case of Ibrahim and Others v. the United Kingdom

There has only been one case to date in which the ECtHR has found ‘compelling reasons’ for restricting the right to exist, and it considered that with the presence of attendant safeguards it was permissible for incriminating statements made by suspects in the absence of a lawyer to be used for a conviction without infringing Article 6 ECHR.

Ibrahim and Others v. United Kingdom Apps. Nos. 5041/08, 50571/08, 50573/08, and 40351/09 (Referred to the Grand Chamber 1 June 20150  concerned the application of a statutory scheme in the UK which grants police officers powers to conduct a ‘safety interview’, that is, questioning in the absence of a lawyer which is justified by urgent risks to the public. In the aftermath of attempted bombings in London, police used these powers to question several suspects to establish whether there were other unexploded bombs hidden in the underground metro system. The suspects told lies to mislead the police. When the suspects later asserted that their bombs had never been intended to explode, it was pointed out that had this been true, they would have mentioned the fact at the time they were questioned. It was alleged that the use of their statements given in the absence of lawyers infringed Article 6. The Chamber found that ‘compelling reasons’ had indeed existed for restricting the right. It further found that the admission of the evidence did not lead to a breach of Article 6, as the system was carefully regulated; the evidence was obtained in fair circumstances; there were sufficient procedural safeguards including directions given to the jury; and there was other evidence to support the finding of guilt.

At the time of writing, Ibrahim and Others v. United Kingdom is before the Grand Chamber of the ECtHR. Fair Trials intervenedin the case to make arguments broadly consistent with those supplied here. We would however stress that, whatever is found by the ECtHR, this does not mean the Directive cannot provide greater protection than the ECHR.

Module 5 – Summary and Final Quiz

You’ve now reached the end of the course. Here, Fair Trials’ Legal and Policy Officer Bruno Min talks you through some of the key learning from the previous modules.

Below you will find a short test of the material covered so that you can evaluate what you have learned. The correct answers will be available for you to see immediately. We recommend that you take the time to go over them in full so that you can see where mistakes may have been made and understand what the correct answers should have been.

 

Unit 4 – Dual Representation in EAW Cases

There are provisions in the Directive which aim to facilitate access to lawyers in European Arrest Warrant (‘EAW’) proceedings. You can find out more about the EAW on our ‘Cross-Border Cases and Human Rights’ module.

‘Dual representation’ refers to an arrangement under which an individual subject to an EAW has legal assistance from lawyers both in the issuing state (the state that is requesting the transfer of the individual pursuant to the EAW) and in the executing state (the state from which the individual is facing transfer).


Benefits of Dual-Representation

Dual representation could be helpful for an individual subject to an EAW for various reasons, including the following:

  • The lawyer in the issuing state might be able to provide information about the prosecution’s case that is of relevance to the EAW proceedings;
  • The lawyer in the issuing state might be able to provide information about the criminal justice system and the laws of the issuing state that helps the requested person to challenge his/her surrender. This could, for example, include information about prison conditions that forms the basis of Article 3 ECHR based challenges, and advice on local legal provisions that affects the requested person’s right to a fair trial under Article 6 ECHR;
  • On certain occasions, lawyers in the issuing state have also been able advocate for the withdrawal of the EAW, and/or by facilitating alternatives to the EAW, such as voluntary transfer;
  • The lawyer in the issuing state might be able to advise on the likely impact of the requested person’s EAW proceedings on his/her criminal proceedings. It may, for example, be worth seeking advice on whether or not the requested person’s decision to resist surrender will have any impact on his/her final sentence, and about how it might affect decisions relating to pre-trial detention; and
  • Given that EAWs can be very difficult to resist, it could be beneficial for the individual subject to an EAW to be given access to legal representation in the issuing state as soon as possible, in order to give the lawyer as much time to prepare his/her substantive case. Depending on the jurisdiction, early access to legal representation could also enable the requested person to make the most of any plea-bargaining mechanisms or other alternative legal procedures, which might help him/her secure the best possible outcome in his case.

Examples

The benefits of dual-representation in EAW proceedings have been illustrated in a number of cases highlighted by Fair Trials, including the following:

Alan Hickey: Alan was arrested in France on charges of human trafficking and was sentenced to serve 18 months in prison. While incarcerated in France, Alan discovered that an EAW had been issued against him by Belgium. Alan was concerned that the charges in Belgium related to the same charges for which he was currently imprisoned in France. This should have prevented his surrender on the grounds of “double jeopardy”. However, Alan was nonetheless surrendered from France to Belgium, where he had no legal representation. At Alan’s trial in Belgium, it became apparent that some of his charges arose from the same offences for which he had already been sentenced in France. Alan pleaded guilty to the remaining offences and was sentenced to one year of imprisonment, but the majority of his sentence was suspended. If Alan had been provided effective and timely legal assistance in both France and Belgium from the outset of his case, his surrender, which breached the double jeopardy rule, could have been avoided.

Natalia Gorczowska: Natalia was a young mother of a one year-old child, who was subject to an EAW issued by Poland on the basis of a minor drug offence she had committed as a teenager, for which she was given a 10-month suspended sentence. Natalia’s surrender could have meant that her baby would have been taken into care, but she could not resist her surrender on this ground. However, Natalia’s lawyer in Poland managed to persuade local courts to drop their request to have Natalia surrendered, and the EAW was subsequently withdrawn.


The right to dual-representation under the Directive

It is often difficult to ensure that an individual subject to an EAW has access to legal representation both in the issuing state, and in the executing state. This is particularly so if neither the requested individual nor the extradition lawyer has much knowledge or experience in the issuing state.

Under Article 10(4) of Directive, the competent authority of an executing state is required, without undue delay, to inform an individual arrested pursuant to an EAW of their right to appoint a lawyer in both the issuing and executing state. If the requested individual chooses to exercise his/her right to legal representation in the issuing state, the competent authority of the executing state has to liaise with their counterparts in the issuing state, which must then provide the requested person necessary information to facilitate their access to a lawyer.

The purpose of the lawyer in the issuing state has been defined to be  “to assist the lawyer in the executing Member state by providing that lawyer with information and advice with a view to the effective exercise of the rights of requested persons” under the EAW Framework Decision. As explained in Recital 45 of the Access to a Lawyer Directive, the competent authorities of the issuing state might be able to fulfil their obligation to facilitate access to a lawyer by, for example, providing a list of lawyers, or the name of a lawyer on duty in the issuing state. It is not certain whether the obligation of the issuing state will be triggered if the issuing state is bound by Directive, but the executing state (e.g. the United Kingdom) is not.


Legal Aid

There are no provisions in the Access to a Lawyer Directive regarding legal aid, which was expressly left as a matter of domestic law and policy, according to Recital 48. However, the Directive on Legal Aid, which was agreed recently (as of July 2016), obliges both issuing and executing states to make legal aid available for individuals subject to an EAW. Under the Legal Aid Directive:

  • Issuing states are only required to provide legal aid if the EAW is a ‘prosecution’ warrant, which means that individuals subject to a ‘conviction’ warrant (i.e. if they have already been convicted and sentenced in the issuing state), are not entitled to legal aid under this Directive;
  • Legal aid should be granted in the issuing state ‘insofar as such aid is necessary to ensure effective access to justice’ (Article 5(2). Note that the wording of this test is different from Article 10 of the Access to a Lawyer Directive, under which the role of the issuing state is to provide assistance ‘with a view to effective exercise of the rights of requested persons’ in EAW proceedings. This seems to imply that the Legal Aid Directive puts in place an additional test for legal aid for individuals subject to EAW proceedings as requested persons; and
  • Member States are able to introduce a means test for determining eligibility for legal aid.

Introduction

This page is designed to present a set of training materials produced by the Legal Experts Advisory Panel (‘LEAP’ ) relating to new EU norms on criminal procedure.

Since 2009, EU has been legislating on defence rights under the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, with a view to strengthening mutual confidence between Member States’ criminal justice systems. The measures adopted Directive 2010/64/EU on the right to interpretation & translation in criminal proceedings (the ‘Interpretation & Translation Directive’ ); Directive 2012/13/EU on the right to information in criminal proceedings (‘Right to Information Directive’ [Bulgarian equivalent]); and Directive 2013/48/EU on the right of access to a lawyer (the ‘Access to a Lawyer’ Directive’ [Bulgarian equivalent]).

Across the EU, there are problems with the way these measures have been implemented in national law, which leaves individuals without rights they are intended to have under EU law. It is therefore important to for lawyers to use the Directives in practice to assert the EU norms.

LEAP has therefore produced ‘Toolkits’ [maintain this word] which aim to provide general guidance to assist lawyers in all countries in the use of these Directives. These include a Toolkit on the Interpretation & Translation Directive, a Toolkit on the Right to Information Directive, and a Toolkit on Using EU Law in Criminal Practice.

LEAP has sought to adapt these resources to facilitate their use at the national level, providing local-language forewords and identifying “Local Focus Issues” where the Directives may be used strategically.

Bulgaria

This foreword includes some guidance to Bulgarian lawyers on access to the case file for persons deprived of liberty. The reader should also review the set of selected Bulgarian translated extracts of the Toolkits (‘Bulgarian extracts’). This video foreword presents a set of training materials produced by the Legal Experts Advisory Panel (‘LEAP’ [maintain English acronym]) relating to new EU norms on criminal procedure and presents one concrete idea as to how these can be used in the Bulgarian legal context.

Bulgarian Foreword(PDF)

Bulgarian toolkit extracts (PDF)

 

Module 1: Introduction to Juvenile Justice

In 2016, the European Union passed a Directive establishing common minimum standards on procedural safeguards for children that are binding across the EU. This represented a considerable consolidation and reinforcement of existing international and European standards, and significantly strengthens the procedural protections available to children in conflict with the law.

This course has been designed to accompany the residential training provided by Fair Trials and our partner organisations in the Advancing the Defence Rights of Children project. It offers a useful introduction to the core juvenile justice concepts, legal instruments and extra-legal understanding of adolescent development required by practitioners working with child suspects and accused persons.

Unit 1: Core Standards and Principles in Juvenile Justice

An overview of International and European standards 

The rights of children in juvenile justice systems have developed steadily over several decades in a number of international and European legal instruments. Most of the key principles underpinning juvenile justice and the rights of child suspects and accused are enshrined in these standards, but only some of the instruments are binding and directly enforceable.

Directive 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (‘the Children Directive‘), is designed to reaffirm the same principles in a binding and enforceable legal measure.

This section examines the framework of international measures which pre-date the Directive, and the ways in which the Directive gives force to many (though not all) of those same standards.

Definitions

First, some terms common among the various international standards are defined for the purposes of this training programme:

  • ‘Child‘: any person below the age of eighteen years (see art. 1 UN Convention on the Rights of the Child )
  • ‘Children in conflict with the law‘: all children who are suspects/accused persons in criminal proceedings.
  • ‘Juvenile justice‘: the set of standards that recognize the child’s human right to a fair trial and special status requiring child-specific treatment. (See art. 40 CRC.)
  • ‘Lawyer‘: any person qualified and entitled in national law to provide legal advice and assistance to suspects or accused persons.

International and European standards

The United Nations has played a leading role in the development of standards to clarify and enhance the position of children in juvenile justice systems:

In 1985, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘the Beijing Rules‘) were adopted

In 1990, the Rules for the Protection of Juveniles Deprived of their Liberty (‘the Havana Rules‘) were enacted. (While neither the Beijing nor Havana Rules is legally binding, both enjoy great authority and they have subsequently influenced international, regional, and domestic laws and policies.

The UN also significantly enhanced the legal position of children generally under international human rights law in 1989 with the adoption of the Convention on the Rights of the Child (‘CRC‘).

The UN Committee on the Rights of the Child (‘CRC Committee‘) has played an instrumental role in the interpretation of the CRC, most notably through the adoption of General Comment No. 10 (‘GC 10’) on children’s rights in juvenile justice, which provides recommendations on the content of a ‘comprehensive juvenile justice policy’ and aims to facilitate the implementation of the Beijing Rules and the Havana Rules.

Inspired by the UN instruments on juvenile justice, many standards have also been developed at the European level:

In 2008, the Committee of Ministers of the Council of Europe (‘CoE‘) formulated the European Rules for juvenile offenders subject to sanctions or measures (‘European Rules‘).

The CoE adopted the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice (‘the Guidelines‘), making the concept of ‘child-friendly justice’ an integral part of the European legal and political framework.[1]

Neither the European Rules nor the Guidelines are formally binding, but they have played a significant role in shaping the jurisprudence of the European Court of Human Rights (‘ECtHR‘).

The network of binding and non-binding international and European Standards establish the basic principles of juvenile justice (which are outlined in the next section). However, the enforcement mechanisms for many of those standards are considered to be weak.

EU law and the Children Directive

The ‘Roadmap’

EU Member States have been cooperating closely on cross-border issues, principally through mutual recognition mechanisms such as the European Arrest Warrant (‘EAW‘). The effectiveness of such mechanisms relies on mutual confidence between judicial authorities that each will respect the rights of those concerned, in particular as guaranteed by the European Convention on Human Rights (‘ECHR’).

In order to strengthen the mutual confidence on which the system depends, the EU has begun imposing minimum standards to regulate certain aspects of criminal procedure through the Procedural Rights Roadmap (‘Roadmap’). This has produced a set of directives, providing minimum standards to ensure mutual trust, binding national authorities in all cases, including those which have no cross-border element.

  Directive Adoption
1 Directive 2010/64 on the right to interpretation and translation in criminal proceedings (‘Interpretation and Translation Directive’) 20 October 2010
2 Directive 2012/13 on the right to information in criminal proceedings (‘Information Directive’) 22 May 2012
3 Directive 2013/48 on the right of access to a lawyer in criminal proceedings and European arrest warrant proceedings (‘Access to a Lawyer Directive’) 22 October 2013
4 Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and the right to be present at the trial in criminal proceedings (‘Presumption of Innocence Directive’) 9 March 2016
5 Directive 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (‘Children Directive’) 11 May 2016
6 Directive on 2016/1919 legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (‘Legal Aid Directive’) 26 October 2016

The Children Directive was adopted in May 2016, and the deadline for the transposition of this directive is 11 June 2019. The Commission was motivated by a concern that the CRC was too broad and limited in its applicability to criminal proceedings to guarantee that children in conflict with the law would have adequate procedural safeguards. The jurisprudence of the ECtHR on children’s rights was also seen to be scattered, and it had resulted in divergent interpretations and varying degrees of implementation.[1]

Briefly, the Children Directive:

  • Builds on the principles found in existing international and European standards, including the Guidelines;
  • Establishes common minimum standards on procedural safeguards for children that are binding across the EU;
  • Contains a ‘non-regression’ clause which states that the protections provided by the Children Directive cannot fall below those of the CRC and the ECHR.
  • The non-regression clause is particulary important for lawyers, as it means that the CRC and the ECHR, as well as authoritative interpretations of both instruments (including case-law, general comments, and soft-law principles) remain central to the interpretation of the Directive.

A more detailed summary of the Children Directive is available here (What are we doing about links to publications?)

Other Roadmap Directives

Lawyers should also be aware that the other Roadmap Directives, including on the Right of Access to a Lawyer, and on Legal Aid apply to accused persons and suspects, irrespective of age. They are not discussed in detail in this training, but Fair Trials has produced a separate series of toolkits and training programmes on these directives which can be accessed here and here.

 

Key principles in International and European Standards

The Children Directive is significant in large part because of the renewed force and specificity it gives to some of the core concepts of juvenile justice inherent in other international and European standards, and the form each takes in the Children Directive is now examined in turn.

Core concepts in Juvenile Justice

The combined effect of the various international and European instruments has been to reinforce and refine the concept of ‘juvenile justice’, first defined in the Beijing Rules as a system that emphasises the well-being of the child and the proportionality of the reaction to child offenders and their offences. This concept was developed significantly by the CRC, which requires children in conflict with the law to be treated in a way which accords with two basic principles:

  • The first is that every child is entitled to be treated fairly, with full respect for his[2] human dignity and his right to a fair trial.
  • The second is that every child is entitled to be treated in a special and child-friendly way. Every juvenile justice intervention should aim to reintegrate the child into society and allow him to play a constructive role. Children should be able to learn from their mistakes and should receive support to prevent reoffending, and this should all be done in a fair manner.

Measures taken in relation to children must align with the objectives of juvenile justice. They must enhance the well-being of the child; they must be proportionate, child-friendly, and respectful to the child’s human dignity and right to a fair trial; and they must enable the child to reintegrate into society.

Moreover, article 40(2) CRC contains a list of minimum standards, specifying the right of all children in conflict with the law to fair treatment and trial. The European Rules similarly requires that any sanctions or measures be:

  • Based on the best interests of the child
  • Subject to the principle of proportionality, i.e. they must depend on the gravity of the offence committed and take account of the child’s age, physical and mental well-being, development, capacities and personal circumstances.
  • Tailored individually, implemented without undue delay and follow the principle of minimum intervention.

The CRC approach to juvenile justice is that every child is entitled to be treated in a special and child-friendly way. This is the basis of the notion of ‘child-friendly justice‘, which was clarified in detail at the European level with the adoption of the Guidelines. In the European context, child-friendly justice particularly refers to justice that is accessible, age appropriate, speedy and diligent. It is justice adapted to and focused on the needs and rights of the child. Child-friendly justice principles apply to every judicial and administrative procedure involving children.

The Scope of Juvenile Justice

The CRC is applicable to anyone below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. Children are acknowledged as rights bearers, entitled to all the rights laid down in the CRC and other human rights instruments. The CRC can thus be contrasted with the Beijing Rules and the Havana Rules, both of which grant the domestic legislator some leeway to define which children come under special legal protections.

The European Rules apply to ‘juvenile offenders’: persons below the age of eighteen who are alleged to have or who have committed an offence. The rules encourage states to extend the scope of juvenile justice to ‘young adult offenders’, meaning persons between the ages of eighteen and twenty-one who are have committed (or are alleged to have committed) an offence.

The Children Directive largely adopts that approach:

  • A child is defined as anyone under the age of 18.
  • Where there is uncertainty as to age, an assumption that the defendant is a child should operate.
  • In the event that a child turns 18 during the course of criminal proceedings it will still apply to those proceedings.

The Children Directive does not apply to cases involving certain minor offences (provided that detention cannot be imposed as a sanction, and the imposition of any sanction can be appealed to a court). The Directive applies whenever the child is deprived of liberty, irrespective of the stage of criminal proceedings.

This may create some uncertainty, given that ‘minor offences’ are not clearly defined, leaving room for EU Member States to exclude certain offences from the scope of the Children Directive. Under the ECHR, ‘criminal charge’ has an autonomous meaning. It is ultimately the ECtHR that decides upon what qualifies as a criminal charge and thus what offences require a fair trial (including the right to legal assistance) in accordance with article 6 ECHR.[3]

[1] See ECtHR Blokhin v Russia (2016), appl. no. 47152/06,at paras. 80, 170 and 203; ECtHR M & M. v Croatia (2015), appl. no. 10161/13, at para. 102; ECtHR Z.J. v Lithuania (2014), appl. no. 60092/12, at para. 73 and 104; ECtHR M.D. and others v Malta(2012), appl. no. 64791/10 at para. 38.

[2] For practical reasons, this training refers to children and lawyers in the masculine form. Feminine children and lawyers are to be considered included in the references as well.

[3] ECHR Engel v Netherlands (1976), appl. no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72. .

 

Unit 6: Cross Border (European Investigation Order) Issues

There is already some recognition in the case-law of the ECtHR that the questioning of a person in one country in the absence of a lawyer (or a valid waiver of that right) may lead the country that subsequently uses confessions obtained in that context to infringe Article 6 ECHR:

Stojkovic v. France and Belgium App. No 25303/08 (Judgment of 27 October 2011) concerned a case in which a person was questioned in Belgium by virtue of a letter rogatory issued by a French investigative judge, indicating that the person should be heard as an ‘assisted witness’, that is a person who is not formally accused but against whom there is evidence plausibly supporting their participation in an offence. The person was heard in Belgium without the assistance of a lawyer, despite requesting one, and without being advised of his right to silence. Subsequently, in France, the person was advised by a lawyer and remained silent before the judge. However, his earlier statements were held against him and he was indicted and convicted at trial, which the ECtHR found infringed Article 6(3)(c).

The relevance of this issue is brought into focus by Directive 2014/41/EU on the European Investigation Order (EIO), due to be implemented by April 2017, which provides for the execution of investigative steps by Member State B at the order of a judicial authority in Member State A. The Directive does not expressly apply to EIO proceedings, and the legislation does not govern in any detail the procedural safeguards which should be applied at the point of executing an EIO. It seems possible that issues around access to a lawyer might therefore arise. In this event, the point is to use the ‘core device’ introduced earlier, only relying on a violation in another country.


i. Try to ensure the questioning is compatible with Article 3

You will be in a much stronger position if you ensure that questioning in another country takes place in accordance with Article 3 in the first place. This will, for instance, ensure that a person is properly able to exercise their right to remain silent. If you are already instructed in the country where the criminal proceedings are taking place, you should seek to ensure that any letter rogatory or EIO issued specifies that the person should be heard in accordance with the requirements of Article 3 of the Directive. You may, equally, see fit to contact a colleague in the issuing country (contact Fair Trials if you need assistance in finding a lawyer in that jurisdiction). It is important to undertake these steps (assuming you are instructed) because, if the person is then for some reason not heard in the presence of a lawyer, you will be in a stronger position to argue against the use of the evidence obtained in the main criminal proceedings (see point iii below).

  • Ensure the letter rogatory / EIO specifies that the person should be heard as a suspect and with the right of access to a lawyer. Inform the judicial authority concerned that you will, in due course, argue against the use of any evidence obtained if the procedure is not compatible with Article 3 of the Directive.
  • Contact a lawyer in the executing / requested country through networks like LEAP or (for Council of Europe countries) the European Criminal Bar Association.

ii. Identify and document the violation in the executing / requested state

It is possible that a person might not be heard with a lawyer, despite your best efforts. National law or practice in the other country might not provide for this, or, more fundamentally, there may be no legal aid available to pay for it. If, for whatever reason, the person is heard without a lawyer present in the executing / requested state, this should be relatively simple to establish. This should appear on the face of the record, and the client will be able to tell you what happened.

You may, equally, suspect that the person has been recorded as having ‘waived’ their right in a manner incompatible with the Directive (as to which see Part II – the same arguments will apply in this context). In that case, you will have to enquire as to how the person was notified of any rights they did have and whether their relinquishment was compatible with the Directive.

  • Establish how the questioning was incompatible with Article 3:
    • Was there simply no right to a lawyer in the executing state, due to a legal, practical or funding reason?
  • Was the right relinquished in a way which did not comply with the Directive (see Part [II] for the relevant enquiries to make)?

iii. Seek remedies in the issuing / requesting state

The logic of the Stojkovic v. France and Belgium case is that, though France did not author the impugned questioning, it was nevertheless its responsibility under Article 6 ECHR to secure the fairness of the proceedings before its own courts. A similar logic should apply under the Directive. Member State A (where you act) is an addressee of the Directive and is bound by a result obligation under Article 12: it has to ensure that in the assessment of statements made by the suspect the fairness of the proceedings is respected. It cannot discharge that obligation if it takes into account incriminating statements which have been collected incompatibly with Article 3, even if another Member State is responsible for the questioning. In fact, should make little difference whether the other country is or is not bound by the Directive: what matters is that the local court is so bound.

  • Seek a remedy (see earlier comments / the Using EU Law Toolkit)
  • Argue:
    • The Directive imposes a result obligation upon the Member State to ensure that the fairness of the proceedings is respected. A direct violation of the Directive in questioning by the Member State’s own authorities would fall to be remedied in the assessment of any statements obtained in that context so as to achieve the result of the Directive. The same obligation arises in respect of statements obtained in questioning in another country carried out in a manner incompatible with the Directive. Drawing an artificial distinction between the two would lead to results incompatible with the Directive and deprive it of useful effect (see, by analogy, the ECtHR case of Stojkovic v. France and Belgium).

Unit 7: Interconnection the Roadmap Directives

The Roadmap Directives are highly interconnected, and the success of each depends on the full implementation of them all. The right to access a lawyer in particular, relies heavily on the effective exercise of other rights protected in the other Roadmap Directives.

For example:

i) the ability of a lawyer to participate effectively in the criminal proceedings (under Article 3 of the Access to a Lawyer Directive) depends heavily on the right to access the case-file (under Article 7 of the Right to Information Directive);

ii) the ability of the suspect or defendant to assert the right of access to a without inadvertently or ill-advisedly exercising the right to waiver (under Article 9 of the Access to a Lawyer Directive) depends highly on the provision of written notification of the right of access to a lawyer (under Article 4 of the Right to Information Directive);

iii) the ability of foreign national suspects to exercise their right of access to a lawyer effectively often depends on the availability of interpretation and translation (under Article 2 of the Right to Interpretation and Translation Directive)

iv) the ability of child suspects and defendants to assert their rights of access to a lawyer relies on special procedural safeguards (under Article 6 of the Children’s Rights Directive) that help them to do this; and

v) the ability of a suspect or defendant to assert the right of access to a lawyer effectively and practically depends on the availability of legal aid (under Article 4 of the Legal Aid Directive).

Further information about the Right to Information Directive and the Right to Interpretation and Translation Directive can be found in Fair Trials’ Toolkit on the Right to Information Directive and the Toolkit on the Interpretation and Translation Directive, respectively.

Unit 2: Best interests of the child and effective participation

‘Best interests of the child’

‘The best interests of the child’ is a concept central to the Children Directive, which emphasises that Member States ‘should ensure that the child’s best interests are always a primary consideration’ (emphasis added). These terms require definition:

  • The concept of the child’s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis.
  • The expression ‘primary consideration‘ means that the child’s best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child: ‘dependency, maturity, legal status and, often, voicelessness’.
  • The Children Directive also provides explicitly that the best interests of the child should be the determinative factor in a wide range of decisions, including those that concern access to a lawyer, the role of parents and other appropriate adults, and pre-trial detention.

The CRC Committee stressed that the child’s best interests is a threefold concept which operates variously as:

  • A substantive right, requiring consideration of the child’s interests over and above other factors whenever a decision is made concerning the child, even if there are other compelling interests at stake. Children are often unable to advocate for their own interests, so authorities are under a legal obligation to be aware of their interests and treat them as being of the utmost importance.
  • An interpretative legal principle: if a provision is ambiguous the interpretation which most effectively serves the child’s best interests should be chosen.
  • A procedural right: any decision which affects a child must be arrived at by a process which includes an evaluation of the possible impact on the child. States should consider that children differ from adults in their development and needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law, and mean that the traditional objectives of criminal justice, such as deterrence and retribution, must give way to rehabilitation and restorative justice objectives when dealing with child offenders.[1]

Determining the best interests of the child

It is important for lawyers to ensure that children can access the procedures that enable the assessment of their best interests to occur. The Children Directive establishes that Member States have a duty to ensure that the child’s specific needs (in terms of protection, education, training, social integration etc.) are taken into account, and requires an individual assessment to be carried out for that purpose. [4]

What is in the interest of each particular child must be determined on a case-by-case basis, and may change over time. This means:

  • That lawyers and other actors in the juvenile justice system have an ongoing duty to determine a child’s best interests.
  • Lawyers should not prioritise their own intuitive judgement, and should be especially cautious about accepting authorities’ assessment of the child’s best interest.
  • Children have the right to express their views, which should be given due weight by the authorities in all matters affecting them, and this means that they have a significant role in determining what is in their own best interests

Lawyers should consider children as fully-fledged clients, and ensure that their views are heard. However, lawyers need to be able to determine the extent to which their clients are capable of understanding the legal implications of their own decisions. The more the child knows and understands, the more weight their view should be given and the more the lawyer should be guided them in determining their best interests.[2]

In order to assess the best interests of the child, lawyers need to acquaint themselves of the child’s physical, mental, spiritual, moral, psychological and social state.

  • They should take a holistic view of the child’s development .This means that they will usually need to establish good rapport with the child to gain first-hand knowledge of the problems and challenges affecting them beyond the confines of the legal case.
  • Lawyers may need to consult social workers, the child’s school, parents and other relevant persons who can provide the lawyer with a comprehensive analysis of the child’s circumstances. A multi-disciplinary and multi-agency approach is necessary to ensure a holistic approach and the continuity of care of children.[3]
  • Lawyers may also find it helpful to have knowledge about the adolescent brain, developmental science, poverty, mental illness, abuse, alcoholism, family dysfunctions etc. They must consider, as must the authorities, that children differ from adults in their physical and psychological development, and that these differences constitute the basis for the lesser culpability of children in conflict with the law.
  • Article 8 of the Children Directive creates a separate right to a medical examination to assess the child’s mental as well as physical condition. This should be taken into account when determining the capacity of each child to be subject to questioning, other investigative acts, or measures to be taken towards the child.

 

Effective participation: Definition

It is clear from the EU Commission’s impact assessment for the Children Directive that the facilitation of effective participation of children was intended as a primary objective of the Directive. The Commission adopted the ECtHR’s definition of effective participation in the case of S.C. v the United Kingdom as, recognising that:

in the case of a child, it is essential that he/she will be dealt with in a manner which takes full account of his/her age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his/her ability to understand and participate in the proceedings, including conducting the hearing in such a way as to reduce as far as possible his feelings of intimidation and inhibition.’[5]

This makes it clear that effective participation, means not only that a child should be heard, but also that states should ensure that the child has a broad understanding of the nature of the investigation and of what is at stake for him.

 

Effective Participation: Right to be Heard

The right to be heard is a principle enshrined article 12 CRC, and article 16 of the Children Directive gives effect to this right by confirming that all children have the right to appear in person at their trial and to participate. This right must be observed at all stages of the process, starting with the pre-trial stage.

However, the right to be heard requires states to do more than simply provide opportunities for the child to speak. Children do not express themselves in the same way as adults, and are likely to be less familiar or comfortable with the language, formality and atmosphere of a trial (or in the intimidating setting of a police interview). Ensuring that they are given a real opportunity to express their views freely therefore requires the provision of special support, and those views should be given due weight in accordance with the age and maturity of the child.[6]

This has several consequences for lawyers working with children:

  • Whenever the child is being heard by the authorities (including in court) and the lawyer is present, the lawyer must ensure that there is an atmosphere that enables the child to express himself freely.
  • Proceedings should generally be conducted in a child-friendly manner as required by the Guidelines, and lawyers should be prepared to intervene when this is not the case, for example, when police officers are being hostile to the child or court proceedings take too long and no breaks are taken.
  • Children should also be consulted on the manner in which they wish to be heard. A child should not be precluded from being heard solely on the basis of age. Whenever a child takes the initiative to be heard in a case that affects him or her, the judge should listen to his or her views and opinion on matters concerning him or her in the case.
  • Lawyers should provide the child with all necessary information and explanations concerning the possible consequences of the child’s views and/or opinions.
  • The CRC Committee finds that the child has the right to be heard directly and not only through his representation if it is in his best interests. This makes a multidisciplinary approach necessary. The help of other professionals (e.g. social workers) is often necessary to accurately assess the maturity of the child and ensure his views are given due weight.

The right to be heard applies also to the period of implementation of any imposed measures, such as deprivation of liberty. Except in the case of very short periods of deprivation of liberty, an overall educational plan, tailored to the individual characteristics of the child must be developed. The views of the child should thereby be taken into account throughout the time in which he is under the supervision or control of the authorities.

 

Effective participation: Right to Information

Rights can only be exercised effectively if their holders are aware of them and have ways of seeking a remedy against possible violations of these rights. Lack of knowledge about their rights or about the accusations could also prevent children from expressing their views effectively, preventing their best interests from being treated with appropriate importance.

The position adopted by the Directive and the ECtHR reflects the approach of the CRC, emphasising that making children aware of their rights is essential to securing juvenile justice:

  • The right to information is enshrined by Article 4 of the Children Directive, and it further affirms that an explanation of a child’s rights should be provided in simple and accessible language.
  • The ECtHR recognised in S.C. v the United Kingdom that the accused needs to have a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed, in order for the individual to participate effectively in the proceedings.
  • However, neither S.C. nor the Directive requires children to understand every aspect of the trial.

The CRC Committee has indicated that the child must also be informed of the juvenile justice process as a whole and of the possible measures that can be taken.

  • Article 40(2)(b)(ii) CRC provides specifically that a child suspected of having committed an offence has the right to be informed of the charges against him ‘promptly and directly’ (i.e. when a prosecutor or judge initially take procedural steps against the child or when authorities decide to deal with a case without judicial proceedings).
  • It is the child that has to understand the accusations against him. The authorities should not leave this to the parents, legal guardians or the child’s lawyer. This means that information and explanations should be communicated to the child directly and not via the parents or the lawyer.
  • However, article 5 of the Children Directive also creates a distinct right for the child to have the holder of parental responsibility (or another appropriate adult) informed of their [the child’s] rights. This should be done as soon as possible and in enough detail to safeguard the fairness of the proceedings.

The Guidelines stipulate the right to information in more detail. They require the provision of information that may not be directly linked to the legal proceedings, but may nevertheless be necessary for the child’s reintegration into society, including:

  • Information on relevant support systems;
  • The time and place of any court proceedings;
  • The availability of protective measures or services (health, psychological, social, interpretation and translation and other);
  • The means of accessing such services (with financial support), and any special arrangements if they are resident in another state. 

[1] GC 10, para. 10.

[2] Beijer & Liefaard 2011 and GC 14, para. 44.

[3] European Rule 15.

[4] Article 7(1) Children Directive.

[5] Commission Impact Assessment.

[6] Art. 12 (1) CRC, ECtHR T. v the United Kingdom(1999), appl. no. 24724/94.

Unit 3: Right to legal assistance, privacy and confidentiality

The Right to Legal Assistance

The right of access to a lawyer is a crucial fair trial right, given the important role that legal assistance can play in ensuring the protection of other rights. This right is especially significant for children, whose age and inexperience create additional obstacles that compromise their ability participate effectively in their criminal proceedings.

To this end, the Children Directive provides for the right of assistance by a lawyer, in addition to the right to of access to a lawyer granted to all suspects and accused persons in the Access to a Lawyer Directive. This suggests that Member States have a positive obligation to ensure that the child is assisted by a lawyer, irrespective of whether the child has asserted his right of access.[1]

The Children Directive accords with (and arguably builds upon) the position taken by the ECtHR in Salduz v Turkey, which emphasised that the right to defend oneself in person or through legal assistance is especially relevant before a case is sent to trial. Under Salduz, the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction regardless of the existence of compelling reasons to justify a denial of access to a lawyer.[2]

However, the ECtHR has subsequently suggested that these rulings do not amount to a ‘bright line rule’. In 2016 ECtHR ruled in Ibrahim & Others v the United Kingdom that the absence of compelling reasons when a suspect has no access to a lawyer does not in itself entail a breach of article 6 ECHR. When examining the proceedings as a whole the ECtHR attached weight to a non-exhaustive list of factors including the vulnerability and age of the suspect or accused is listed as a relevant factor.[3]

It is not clear how much weight the ECtHR attaches to this factor in its overall assessment of the fairness of the proceedings. The requirement in the Children Directive that a child suspect have access to legal assistance outside specified derogations appears to provide a  right which is both more extensive and easier to assert.

Derogations

The Children Directive explicitly recognises that there are limitations to the right to legal assistance:[4]

  • According to Article 6(6) of the Children’s Directive, derogations are allowed where the assistance of a lawyer would not be proportionate in the light of the circumstances of the case, taking into account the seriousness of the alleged criminal offence, the complexity of the case and the measures that could be taken in respect of such an offence. The child’s best interests must always be a primary consideration.
  • There is no derogation from the child’s right to access to a lawyer in any case when: the child is detained detention; brought before a judge in order to decide on detention at any stage of the proceedings; or when deprivation of liberty is to be imposed as a criminal sanction; or during trial hearings before a court.

Member States may also derogate temporarily from the obligation to ensure that children are assisted by a lawyer in exceptional cases at pre-trial stages, to the extent justified by the circumstances of the case. This is possible:

  • Of there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person, or;
  • Where immediate action by the investigation authorities is imperative to prevent substantial jeopardy to criminal proceedings in relation to a serious criminal offence;
  • Again, the child’s best interests have to be taken into account.

The decision to proceed with questioning without the presence of lawyer under this derogation may be taken only on a case-by-case basis, either by a judicial authority, or by another competent authority on the condition that the decision can be submitted to judicial review. There is further discussion of near-identical derogations in the Fair Trials toolkit on the Access to a Lawyer Directive.

Waivers

Like other suspects and accused persons, children are often pressured to waive certain rights prior to the appointment of a lawyer. However, given their lesser experience and more limited capacities for judgement and decision-making, it is more likely that children will be more susceptible to pressure than adults. To give a common example, a child told by a police officer that he ‘doesn’t need a lawyer’ and ‘will probably be free to go after he answers a few questions’ is much less likely to insist on having a lawyer present than an adult.

The Access to a Lawyer Directive recognises that the right of access to a lawyer can be waived, provided the suspect or accused person has been given sufficient information about their rights and the consequences of the waiver, and the waiver is given voluntarily and unequivocally. The initial proposal for the Children Directive provided explicitly that the right of access to a lawyer cannot be waived by a child, but this was subsequently removed.

The final Children Directive makes no explicit reference to waivers, but it can be argued that children cannot waive their right to legal assistance (as opposed to the right of access to a lawyer). The jurisprudence of the ECtHR is clear that the right of access to a lawyer may be waived by the child, although the practical implications of the requirements for such a waiver are not clarified. The ECtHR’s position was that:

  • A waiver must be expressed in an explicit and unequivocal manner, and that the child should be able to reasonably foresee what the consequences are of his conduct.
  • Given the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings, a waiver by him or on his behalf of legal assistance can only be accepted after the authorities have taken all reasonable steps to ensure that he is fully aware of his defence rights and can appreciate, as far as possible, the consequences of his conduct.
  • It is not clear what the ECtHR considers ‘explicit’ and ‘unequivocal’, but it is clear that conveying information on the right to legal assistance to a parent while the child is being interrogated, does not meet the required standard.[5]

This position has been challenged. It has been suggested that the need to provide the child with protection outweighs the obligation to provide them with autonomy, and children should not be permitted to waive their right to a lawyer in such an early stage of the proceedings.

Article 6 of the Children Directive is framed as an obligation upon Member States to ensure that a child has legal assistance, as opposed to an obligation on Member States to facilitate individuals getting legal assistance. The preamble of the Children Directive states that:

  • Assistance by a lawyer under the Children Directive presupposes that the child has the right of access to a lawyer under the Access to a Lawyer Directive.
  • Where the application of a provision of the Access to a Lawyer Directive would make it impossible for the child to be assisted by a lawyer, such provision should not apply.

Given the vulnerability of the child, lawyers may wish to advocate that the most favourable reading of the Directive should be applied, which is that states should guarantee the presence of a lawyer, irrespective of the wish of the child to waive legal assistance.

 

Protection of privacy and confidentiality

A child suspect and accused person’s right to privacy must be protected ‘at all stages of the proceedings’.  This begins with the initial contact with law enforcement (e.g. a request for information and identification) and ends only with the final decision by a competent authority, or release from supervision, custody or deprivation of liberty. This has implications for publicity related to child suspects, the confidentiality of the child’s communication with his lawyer and the child’s privacy during court hearings.

Privacy

Article 14 of the Children’s Directive reiterates that Member States should take all appropriate measures to ensure the child’s right to privacy during criminal proceedings is protected:

  • Court hearings involving children should be held in private, or courts and judges should be allowed to use their discretion in that regard. Verdicts should be pronounced in public at a court session in such a way that the identity of the child is not revealed.
  • There is also an obligation on Member States to encourage self-regulation by the media to achieve this objective.
  • The Commentary to Beijing Rule 8 stresses that children are particularly susceptible to stigmatisation. As such, no information that may lead to the identification of a child offender may be published.

Confidentiality

For lawyers to be effective in defending their clients’ rights there must be confidence that information shared with the lawyer will remain confidential. Article 6 of the Children’s Directive is therefore explicit that the child’s right to assistance by a lawyer includes the right to confidentiality between the lawyer and child, and the right to confidentiality is non-derogable. Thus:

  • The state must secure the privacy and confidentiality of communications between the child who is detained or arrested and his lawyer. Lawyers must be able to visit the child unrestrictedly and unsupervised.
  • Any criminal records relating to the child should be kept strictly confidential except for those directly involved in the investigation and adjudication of, and the ruling on, the case.
  • The transfer of such data should occur only in accordance with the best interest of the child, and with data protection legislation.

It is crucial that lawyers maintain a child’s confidentiality. Without a real guarantee that their communications with their lawyer are privileged, there is a danger that the child will no longer sufficiently trust the lawyer to disclose further relevant information. A breach of this kind therefore often amounts to denying the child effective representation. The only exception is where there is a real risk of harm to the child. In such a case confidentially disclosed information should be shared with other professionals in order to prevent further harm to the child.

Conclusion

Lawyers have a substantive framework of international and regional European standards at their disposal to serve the interests of their child clients. Binding standards at the international level do not yet set out clearly when lawyers should be present during criminal proceedings to advise their clients on this framework. But at the European level, the Children’s Directive provides some clarity by imposing obligations upon EU Member States to actually provide the assistance of a lawyer at certain moments during proceedings and by giving force to several core principles developed in the older international and regional standards.

Providing legal assistance to children at those moments is not an easy task. Many practical and legal barriers may hamper the provision of effective legal assistance, such as police officers dissuading suspects from taking up their right to see a lawyer, or criminal proceedings conducted in a manner which is not child-sensitive. Lawyers have to manoeuvre between these barriers and assist their client, the child, in navigating the criminal justice process and asserting their rights.

 

[1] Recital 25, Children’s Directive.

[2] ECtHR Salduz v Turkey(2009), appl. no. 36391/02, para. 55.

[3] ECtHR Ibrahim & Others v UK (2016) appl. nos. 50541/0850571/0850573/08 and 40351/09 para. 262, para. 274.

[4] It was foreseen that right to legal assistance could have substantial financial implications for Member States and a proportionality clause was inserted in the Directive (Cras 2016, 113).

[5] ECtHR Panovitz v Cyprus (2009), appl. no.4268/04,  paras. 68 and 73.

Module 2: Juvenile justice and adolescent development

Introduction to adolescent development

Lawyers working with children do not need to be experts in child psychology, and should seek help from appropriate professionals when necessary. However, in order to defend the rights of children in conflict with the law effectively, it is essential for lawyers to have some working knowledge and understanding of the developmental phase and psychological characteristics of children and adolescents. This knowledge could help lawyers to interact with their young clients more effectively, identify their needs, and to understand their behaviour.

This section

  • Provides a brief introduction to the cognitive and emotional development of adolescents.
  • Explains the impact this has on their capacity to understand the justice system and their role in it as defendants.
  • Describes in outline the most common mental health problems experienced by children in conflict with the law.

Key terms

A juvenile justice system by definition operates between the minimum age of criminal responsibility and an upper age limit which is usually the age of majority. Both the lower and upper limit therefore vary widely between societies and legal systems.

Regardless of the jurisdiction, however, the legal definition of a ‘child’ almost always differs from how the term is used by psychologists. While it must be always borne in mind that there is a great deal of variation between individuals, research strongly suggests that adolescent development can be usefully divided into distinct phases:

  • Childhood: from conception to 10 years old
  • Adolescence: starts between 10-13 years of age and ends between the ages of 18-22
  • Early adolescence: 10-15

Throughout the period of adolescence, a child’s development (physiological, neurological and psychological) speeds up, causing well known changes in behaviour. Before examining these in detail, it is useful to consider the general level of understanding most adolescents will have of criminal justice as a whole, and the clear evidence that adolescents are disproportionately likely to come into conflict with the law.

 

Adolescent development and the understanding of juvenile justice proceedings

The developmental phase of adolescence affects young people’s understanding of the criminal justice process and proceedings.  Research has shown that before the age of 12 or 13, children perceive themselves as accountable only to their immediate environment (and therefore to familiar authority figures such as their family, teachers, neighbours, etc.) rather than to wider society. Fuller understanding of the nature and purpose of the justice system requires an ability to think in abstract terms which only usually develops from the age of 14 onwards. Until then children are unlikely to perceive legal procedures as legitimate, or fully appreciate their own place within a broader social system.

The rate at which a child’s capacity for abstract reasoning, knowledge and comprehension of the justice system develop varies significantly according to the intelligence and education of the individual. In general however:

  • Adolescents are not likely to be capable of understanding what it means to be before a judge until around 14.
  • 16 and 17 year olds are more similar to those in their early 20s than to 14 year olds, having a fuller capacity for abstract reasoning and a greater sense of the role of the justice system (albeit they may lack precise knowledge common to mature adults).

This has obvious implications for the requirements of proportionality, individually tailored measures and child-friendly justice, and for the work of the child’s lawyer. These implications are discussed more fully in the next three sections. However, it is of fundamental importance that lawyers are aware of the need to take very special care when explaining the relevance and implications of criminal proceedings to child clients.

Juvenile Delinquency

It is well-known that the prevalence of delinquent behaviour increases during adolescence. A peak in crime rates occurs around the ages 15-19 and then declines in the early 20s. This is called the ‘age-crime curve’ and the same trend is found across all Western populations.

The statistics therefore suggest that most young people in conflict with the law will ‘age out’ of criminal behaviour naturally: 40-60% of juvenile delinquents stop offending by early adulthood.

The high prevalence of offending in adolescence can partly be explained by the process of physiological and psychological development which individuals undergo during adolescence.

Understanding the various aspects of adolescent development outlined below, and the psychological characteristics of children can help lawyers to deepen their understanding of the mind-set of their clients, the reasons for their actions, and also to help them communicate.

Cognitive development

During adolescence, the intellectual abilities of children develop markedly. Adolescents are able to think in more advanced, abstract and effective ways compared to children.

  • Formal intellectual development speeds up until the age of 18 (after which IQ does not usually increase significantly).
  • Logical reasoning skills increase more gradually between 11 and the early twenties.
  • The brain’s higher executive functions (planning, verbal memory and impulse control) expand more slowly and are only fully developed around the age of 25).

Adolescents therefore differ from adults in their social and emotional maturity, and their ability to make judgements and decisions. Because formal intelligence and logical reasoning skills advance more quickly than the higher executive functions, adolescent decision making differs from that of mature adults.

As a consequence, several patterns of behaviour are characteristic of the adolescent developmental phase. Although none is necessarily delinquent, each explains to some degree why individuals are more likely to come into conflict with the law during adolescence than later in life:

  • Risk taking: Adolescents tend to underestimate risks and do things they generally know are dangerous or prohibited e.g. drug use, violence, dangerous engagement with road traffic, risky sexual behaviour etc.
  • Disregard for long term consequences: Research suggests that adolescents take more risks not because they do not perceive the risks, but that they invariably underestimate the long term risks attached to certain behaviour (including the risk of arrest or prosecution). The capacity to foresee the short and long-term consequences of behaviour increases gradually between childhood and young adulthood.
  • Lack of impulse control: Risk-seeking behaviour can also be party explained by the impulsivity produced by hormonal and other physiological changes that occur during adolescence. Furthermore, neuroscience suggests that the areas of the brain which govern emotions (and thus emotional responses to stimuli) develop earlier than the prefrontal cortex, which governs self-control. Impulsivity therefore peaks during adolescence and declines until about 30 years of age, as the prefrontal cortex develops more slowly than the emotional centres which drive impulsive choices.
  • Susceptibility to peer pressure: After the age of eight desire for peer interaction rises until it peaks between 12 and 16. This means that adolescents are unusually sensitive to peer pressure, which exacerbates their tendency towards risk-taking and impulsivity in that period.

Emotional Development

A key outcome of emotional development of adolescents is the establishment of a sense of autonomy or independence. After 10-11 years old children stop seeking approval from parents and begin to seek separation, often opposing the wishes and advice of adults to assert independence. The natural egocentrism which characterises childhood decreases gradually and adolescents become increasingly able to have more reciprocal interpersonal relationships with others.

Another key outcome, the development of identity, takes place later in adolescence, during the late teens and early twenties. A coherent self-image and identity do not form until the end of adolescence. The development of identity is characterised by greater capacity for moral reasoning, reflectiveness and long term judgements (e.g. about education or occupation). This process takes place later, after the age of 15, and is not complete until the very end of adolescence in the mid-20s. Until that point, anxiety and experimental conflict with authority are common.

Although most young people display risky or even delinquent behaviour, young offenders are also at higher risk of a range of problems. They are more likely than the general population to experience developmental delays, intellectual deficits, learning disabilities and emotional disorders, and to show high levels of drug and alcohol use. Two problems of particular importance are discussed here: mental health problems and intellectual disability.

Mental health problems

Mental health problems are more prevalent among young people who come into contact with the criminal justice system, and especially among those who are deprived of their liberty, when compared to adolescents who do not come into contact with the juvenile justice system.

Research findings on vulnerable groups, including children who have been living in juvenile institutions and those with low intelligence, shows that both groups have longer criminal careers and are convicted more often than other groups of children. Mental disorders which are characterised by cognitive impairment and cognitive impulsivity are particularly prevalent:

  • Attention Deficit Hyperactivity Disorder (ADHD) can cause impulsivity, which is related to delinquency.
  • ADHD is often accompanied by conduct disorder. Symptoms of a conduct disorder include aggression towards people and animals, destruction of property, deceitfulness, theft and serious violations of rules.
  • This can develop into an antisocial personality disorder, characterised by failure to conform to social norms, deceitfulness, impulsivity,irritability, aggressiveness and lack of remorse or empathy.
  • Similar symptoms (especially a lack of empathy) are common among young offenders with autism spectrum disorder, characterised by persistent deficits in social communication and social interaction across multiple contexts. This often manifests in problems with social-emotional reciprocity, deficits in non-verbal communication and difficulty developing, maintaining, and understanding relationships.
  • For adolescents with ASD, antisocial behaviour can be the consequence of the inability to ‘read’ social situations. ASD can also create profound difficulties for a young defendant in understanding the legal process and interacting with actors in the justice system.

Intellectual disability

For similar reasons, young people with an unusually low IQ (i.e. below 85) are also over-represented in the justice system, have more convictions and longer criminal careers than young people with an average IQ or higher. There are several particular problems which arise from intellectual disability:

  • Low IQ is not easily spotted without a test, and people are often assumed to be functioning on a higher level than their real capabilities. It also coincides with psychiatric disorders, behavioural problems and difficulties in the social or family environment. Poverty and social disadvantage are common.
  • Low IQ adolescents commonly score highly on cognitive impulsivity and are more often charged with delinquent offences. Moreover, professionals do not always adequately assess the cognitive and social abilities of young people with low IQ.
  • Intellectual disability can cause young people to have communication difficulties. They can have problems in understanding others’ perspectives, social situations and social cues and processing social information. This can cause difficulties in choosing appropriate ways of acting, both in society generally and while navigating the legal system as a suspect.

Conclusions

Research has shown that young people are only capable of understanding what it means to appear before a judge when they are around 14 years of age. In adolescence, the cognitive and emotional skills of young people develop rapidly. Although the intellectual abilities might be developed halfway through the teenage years, the manner in which adolescents take decisions differs from adult decision-making. This affects their tendency to take risks, inability to foresee the long-term consequences of behaviour, lesser ability to control impulses and susceptibility to peer pressure. For the majority of young people, some degree of delinquency is part of their normal development into adulthood.

However, young offenders have a higher risk of experiencing a range of problems, such as mental health problems and low IQ. These mental health problems can also cause learning and communication difficulties, which makes it even more difficult for these young people to understand the criminal procedures in which they are involved. Lawyers should be mindful of the intellectual and communication difficulties a child may experience and to bring these to the attention of other professionals in order to best support the child.

Module 3 – Procedural safeguards for children in conflict with the law in specific proceedings

Introduction

This module outlines the practical implications of the EU Directive and other international and regional standards at the various stages in criminal proceedings. In the next three sections, we’ll be looking at how the various key legal principles can be applied at various stages of the legal proceedings, focusing on:

1) Arrest and police interrogation;

2) Pre-trial detention;

3) Court proceedings.

Unit 1: Arrest and Police Interrogation

The initial stages of criminal proceedings will often be a child’s first ever contact with the police and the criminal justice system. Children are often scared, desperate and confused when they are arrested, and they are especially vulnerable during the moments immediately following the arrest and during their interrogation.

The responsibility to ensure the protection of a child’s best interests is shared between various actors in the juvenile justice system. This includes police officers, who are legally bound under Article 3 of the CRC to treat the child’s best interests as a primary consideration. The process of arrest and interrogation, however, is not designed in a way that gives much effect to that obligation, because they are usually deployed to secure confessions, and to obtain information helpful for the police for ongoing criminal investigations.

Right to Legal Assistance

The lawyer’s presence and legal assistance at the police station helps children to access their fair trial rights, including those that are specific to child suspects and defendants. For example, lawyers can play a crucial role in ensuring that children understand their rights, and that they benefit from procedural adaptations that would enable them to participate effectively during the crucial initial moments of their criminal proceedings. For these reasons, it is generally in the interests of the child that lawyers are appointed as soon as possible after the child comes into contact with the criminal justice system as a suspect or an accused person.

Scope of the Right of Access to Legal Assistance

Article 6 of the Children Directive requires Member States to ensure that a child suspect or accused person is assisted by a lawyer, from the earliest moment in their criminal proceedings (this provision states that children should be assisted by a lawyer ‘without undue delay’ once they are made aware that they are suspects or accused persons, including before they are questioned by the police or judicial authority, and following the deprivation of liberty).

According to the Recital 28 of the Children Directive, the obligation to provide children with assistance by a lawyer does not include providing support during:

  • the stages of identifying the child;
  • determination of whether an investigation should be started;
  • verification of the possession of weapons or other similar safety issues; or
  • investigative or evidence-gathering acts other than those specifically referred to in the Children Directive (e.g. body checks, physical examinations, blood, alcohol or similar tests, or the taking of photographs or fingerprints; or bringing the child to appear before a competent authority or surrendering the child to the holder of parental responsibility or to another appropriate adult, in accordance with national law.)

The Children Directive mirrors the provisions found in the Access to a Lawyer Directive by confirming that legal assistance includes private lawyer-client consultations before questioning, as well as effective participation during questioning (Article 6(4), Children Directive). In other words, Member States are not only required to ensure that a lawyer is present during police interrogations, but they should also allow them to take an active role during the interrogations. This is particularly significant for child suspects and defendants who may require interruptions and interventions from their lawyers during questioning to ensure that they are heard and that their best interests are taken into consideration.

Derogations and Waivers

The right to legal assistance under the Children Directive is not absolute. Derogations are permitted. Given that Article 6 of the Children Directive is framed not as a right for children but as an obligation upon Member States, it seems that children cannot waive their right to legal assistance. However, under Article 6(6) of the Directive, derogations are not permissible during detention, and this seems to include cases in which a child is in police custody. In practice, lawyers may not always have an influential role in determining how decisions regarding derogations and waivers are made during the initial stages of criminal proceedings, but in these situations, the role of other actors, such as holders of parental responsibility and appropriate adults, could be significant. They could help to ensure that the child makes an informed decision about getting legal assistance, and to resist pressure from police officers who may try to dissuade the child from getting a lawyer.

 

Effective Participation

During the police interrogation, the right to be heard must also be balanced with the right to remain silent, and the lawyer should advise the client on the right strategy to deploy during a police interrogation. Lawyers should however, be careful when advising their child clients to make use of their right to remain silent. It has been suggested that lawyers are often too eager to advise this as a strategy, even in minor cases in which the child’s guilt seems obvious. Relying on the right to remain silent could also prevent the use of diversion mechanisms, which may require the child’s co-operation.

The Children Directive requires Member States to enable lawyers to participate actively during police interrogations. This means that lawyers should be able to intervene, for example, to ensure that questions are phrased in a way that their child client can understand, to check that their child client has understood the questions, and to also ensure that their responses are not misinterpreted. Lawyers should also be prepared to interrupt and protest where the questioning is unfair or if the conduct of the police officer is unduly intimidating.

The role of other actors can be instrumental in ensuring that the child is heard. Lawyers can and should try to get to know their clients so that they are able to identify their needs and to assess their capabilities. In practice, the time given to lawyers to do this prior to police interrogations will often be insufficient, and in these situations, the role of others who know the child better, including social workers and those with parental responsibility, could be very significant. They could, for example, have a pre-existing understanding of how the child’s communication and language skills, that could help to ensure that the child is heard.

Member States are required by the Children Directive to ensure that children are accompanied by a holder of parental responsibility or an appropriate adult during their legal proceedings, so long as it is considered that this would be in their best interests, and the presence of that person does not prejudice the proceedings (Article 15(4)). The preamble of the Directive recognises police interrogations as a stage at which this obligation is engaged. Having a familiar face at a stressful time can help children feel more comfortable, and help them express their views, but as mentioned above, holders of parental responsibility could also have a damaging impact on a child’s right to be heard. This is particularly so if parents take an over-active role during questioning, or if the children feel intimidated or embarrassed about speaking openly in their presence.

Right to Information

A child’s ability to understand their position, and to make sense of the information given to them by the police and by their own lawyer is generally more limited than that of an adult. A child who has been arrested by the police might be encountering the justice system for the first time, and that they could find the experience more stressful than most adults. The lawyer must take special care to ensure that a child suspect understands the information being given to them, whether by interpreting it themselves, or by prompting the police to use simple, child friendly language, and by explaining the implications for the case.

Children are required under ECtHR case law to have a ‘broad’ understanding of the process, and of what is at stake.[1] This means that lawyers need to ensure that their child clients understand most relevant aspects of applicable laws and procedures to enable the child to participate effectively in the proceedings. As a bare minimum, children must always understand their right to information under Article 4 of the Children Directive.

Scope of the Right to Information

The Information Directive contains provisions about the scope of the information that must be provided to suspects and accused persons, irrespective of their age, and about the way in which such information should be provided. In particular, all suspects and accused persons should be given information promptly about certain procedural rights, and about the criminal act that they are suspected or accused of having committed.[2]

The Children Directive reaffirms that there is a specific obligation upon Member States to inform children of their rights, and it refers to the Information Directive, but it elaborates further on the rights that must be provided, and how and when this should be done. Article 4(1) of the Children Directive recognises that there are different rights that must be explained to children at different stages of the proceedings these are. It provides that the following rights must be provided promptly when the child is made aware that they are suspects or accused persons:

  1. The right to have the holder of parent responsibility informed;
  2. The right to be assisted by a lawyer;
  3. The right to protection of privacy;
  4. The right to be accompanied by the holder of parental responsibility during stages of the proceedings other than court hearings; and
  5. The right to legal aid.

The Directive also specifies that some rights need to be explained to the child ‘at the earliest appropriate stage’ and others ‘upon deprivation of liberty’, which are discussed in more detail later. However, it is important to note that amongst these rights are the right to an individual assessment, the right to a medical examination, the right of limitation of deprivation of liberty, the right of specific treatment during deprivation of liberty, all of which could be relevant at the very early stages of the proceedings. Lawyers should therefore ensure that information about these rights is also made available to the children at the earliest possible stage.

Procedure

The Children Directive makes it clear that the information needs to be provided orally, in writing, or both, in simple and accessible language, and that, as provided under the Information Directive, children should be given a letter of rights. Lawyers should note that the obligation to provide children with letters of rights are not satisfied by providing the same letter of rights given to adults. This is not only because the language used in the letter of rights might not be comprehensible to children, but also because it will not contain information about rights that are specific to children. Lawyers should not assume that the mere use of special letters of rights tailored for children will not only ensure that children understand their rights, but also that they are given accurate information about their rights.

 Audio-visual recording

The Children Directive requires Member States to ensure that the questioning of children is audio-visually recorded, where this is ‘proportionate in the circumstances of the case’, and it is in the best interests of the child. Decisions on the proportionality of audio-visual recording in a specific case should take into account, inter alia, whether a lawyer is present or not and whether the child is deprived of liberty or not (Article 9(1)). If no recording is made, the questioning should be recorded in another appropriate manner, such as by written minutes that are duly verified (Article 9(2)).

Audio-visual recording can be an effective safeguard that helps to ensure that the rights of suspects and accused persons during police interrogations are protected. It can, for example, act as a strong deterrent to ill-treatment or coercive interrogation techniques, and it can provide evidence of the level of the child’s effective participation, should this become an issue at a later stage. The recording could also protect police officers from unjustified accusations of poor treatment, enabling them to demonstrate to have treated a child fairly. It is not an absolute obligation. The relevant authorities have the discretion under the Children Directive to decide whether a recording is proportionate. In practice, a recording should be demanded in almost all cases, and lawyers should point out the advantages of audio-visual recording to both their client and the police officers.

Privacy and Confidentiality

Lawyers have to keep matters between them and their clients strictly confidential (Article 14 of the Children Directive), and this applies throughout the proceedings. The Directive further stipulates that Member States must respect the confidentiality of communication between children and their lawyers. Such communication includes meetings, correspondence, telephone conversations and other forms of communication permitted under national law.

Article 6(5) of the Children Directive appears to be non-derogable, but this provision is without prejudice to procedures that address the situation where there is a suspicion that the lawyer is involved with the child in a criminal offence (Recital 33). It is moreover without prejudice to a breach of confidentiality that is incidental to a lawful surveillance operation by competent authorities and to the work that is carried out, for example, by national intelligence services to safeguard national security (Recital 34)

Diversion

Once lawyers have obtained a complete picture of the child’s situation, they may try to steer the police towards diverting the case out of the criminal justice system (if this is in the best interests of the child and in agreement with the child’s views). The objectives of juvenile justice discourage a purely punitive approach, so when diversion offers a better opportunity to reintegrate the child back into society, that option should be chosen. The lawyer has a substantial role to play in advocating for such a measure. Diversion programmes differ greatly from country to country, and lawyers should have a good understanding of such programmes in order to determine whether diversion would be in the best interests of their child clients. An individual assessment may help to determine the appropriateness of diversion.

Arguably, it is usually in the interests of the child to be diverted from the justice system. Programmes that allow children to maintain their family ties and keep attending school seem to yield better results than prisons in which family life, education and work are of a different standard. Detention (especially when children are placed in isolation) tends to deliver lower levels of education, and higher rates of reoffending and crime. The impact on the individual is no less detrimental, leaving many convicts mentally and emotionally scarred, having lost their connection to their resources or support systems when returned into the community.

In many countries, police have a broad discretion to divert juvenile cases from the system by referring the child to a diversion program. Studies from the United States of the nature and effects of this informal diversion process suggest that the primary factors influencing the decision to divert a case include: the seriousness of the offense; the age of the child; the child’s prior record of convictions, charges, prior contacts with the police; the race, gender, and socio-economic status of the child; the demeanour of the child (youths who seem respectful to the officers and fearful of sanctions are viewed as “salvageable” and therefore diverted from the system); the comments and attitude of the parents upon being informed of the child’s arrest (with the officer assessing whether the parents are likely to appropriately punish the child and control his misbehaviour in the future); and, finally, the individual officer’s personal feelings about the efficacy of the juvenile justice system and the likelihood that a child will derive any benefits from court. Lawyers should point the police officers to these elements whenever favourable for the case of the child, to persuade the police officer to divert the case.

[1] S.C. v. the United Kingdom (2004), appl. no. 60958/00.

[2] Information Directive, Articles 3, 4, and 6.

Unit 2: Pre-trial detention

Depriving a child of his liberty is almost never in his best interests. Deprivation of liberty produces severe adverse impacts on children. Even short periods of detention can undermine a child’s psychological and physical well-being and compromise cognitive development. Children deprived of their liberty are at a heightened risk of suffering depression and anxiety, and frequently exhibit symptoms consistent with post-traumatic stress disorders. Reports on the effects of depriving children of liberty have found higher rates of suicide and self-harm, mental disorder and developmental problems. In institutions around the world where children are deprived of liberty, there are serious concerns with regard to violence, including peer-to-peer violence, violence between staff and children and forms of self-inflicted violence.

Lawyers must assist children in three main ways if they are in pre-trial detention, or they are at risk of being detained. They must ensure that:

  • their child clients are only detained as a matter of last resort and for the shortest period of time;
  • they are receiving effective legal assistance during detention; and
  • their rights and welfare are protected in detention.

Measure of Last Resort for the Shortest Appropriate Period of Time

The ECtHR has affirmed in the case of Güveç v. Turkey that the pre-trial detention of a child is only permissible as a measure of last resort, and must be for the shortest possible time. This position has been adopted in Article 10 of the Children Directive, which requires Member States to limit deprivation of liberty of a child at any stage of the proceedings to the shortest appropriate period of time, taking the age and individual situation of the child, and the particular circumstances of the case into account. Member States are moreover obliged to impose deprivation of liberty only as a measure of last resort, and to base it on a reasoned decision and subject it to judicial review by a court.

It is crucial that lawyers understand their clients and their circumstances. This is because knowledge about the child’s circumstances could strengthen arguments in favour of their release, and identify suitable alternatives to pre-trial detention. Lawyers need to inform themselves of any factors that might mean that the client’s release is against their best interests. In particularly difficult cases, children might be at risk of direct harm if released to the custody of their parents or usual carers, whether because of abuse or because of an unsafe situation in which particular needs are not being met. The possibility of such circumstances makes the possibility of requesting an individual assessment and a medical examination all the more important.

 

Time Limits

The Children Directive does not give minimum timeframes for the pre-trial deprivation of liberty of children. What amounts to the ‘shortest appropriate period of time’ and ‘measure of last resort’ in a specific case is left open to interpretation. This approach is consistent with that taken by the ECtHR in the case of Nart v. Turkey, in which the court held that the question of whether or not a period of detention is reasonable cannot be assessed in abstracto. The court opined that this had to be determined on a case-specific basis, by considering whether or not there is a genuine requirement of public interest that outweighs the rule or respect of individual liberty.

In Nart v. Turkey, the ECtHR found a violation of the ECHR (Article 5(3)), since the applicant was still a child while in pre-trial detention for forty-eight days. In Güveç v. Turkey, in which the applicant was detained from the age of fifteen and kept in pre-trial detention for a period in excess of four and a half years, the court found the detention excessive and in violation of Article 5(3) ECHR. In Selçuk v. Turkey the ECtHR considered pre-trial detention of a child for a period of four months in breach of Article 5(3) ECHR.

In contrast, in the case of J.M. v. Denmark, in which a minor was held in pre-trial detention for over 16 months, the ECtHR found no violation of Article 5(3) ECHR. The child had been placed in a secure institution for young offenders, where his mental status was examined. Moreover, the lawfulness of the continued detention was regularly assessed by the domestic courts. The detention was not only based on the gravity of the accusation, but also on the public reaction: it would have offended the public sense of justice if the applicant, who had confessed to the rape and homicide of an eighty-five-year old woman, had been released pending completion of the mental status examinations.

When children are detained in police custody, lawyers should refer to the CoE Recommendation (2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice. It states that where children are detained in police custody, they should not be detained for longer than forty-eight hours in total and for younger offenders every effort should be made to reduce this time.

 

Last Resort and Alternatives to Pre-Trial Detention

‘Last resort’ presupposes that deprivation of liberty of children can only be used if alternative options are not considered adequate, or have proven to be inadequate in light of the objectives of the deprivation of liberty. This means that objectives of the deprivation of liberty in should be clear and explicit in each case. If there are no clear objectives, it will be difficult to assess the necessity of the placement and/or the use of alternatives.

Member States have an obligation under Article 11 of the Children Directive to ensure that alternative measures are available. Alternative measures should be available at any point a child is at risk of being detained, including during the pre-trial stage. Pre-trial alternatives to detention could include police cautioning, release on bail, probation, community service, the imposition of fines, educational measures and mentoring, care-based and therapeutic measures and restorative approaches.

Lawyers should familiarise themselves with suitable alternatives to pre-trial detention in order to strengthen applications in favour of their release. However, they should be careful not to advocate for measures or conditions that are inappropriate or unworkable. For example, subjecting children to too many conditions could make it difficult for them to understand and remember all of them, and it could make it difficult to ensure compliance with those conditions. A US study found that children remember only one-third of court-ordered release conditions.

It is important to note that there are no ‘one-size-fits-all’ measures. The advice and input of other actors (social workers, mental health and other medical experts in particular) is especially valuable in making the lawyer and the authorities are aware of the best available option for each child, and ensuring that suitable arrangements are in place to ensure that he can be released. In 2017, the UK Home Office adopted a ‘Concordat on Children in Custody’ which contains guidelines on how different actors, including the police and local authorities, should coordinate their activities to ensure that children are not kept in detention for prolonged periods. The concordat emphasises that resource limitations, particularly in relation to accommodation for the child, do not constitute a good reason for failing to provide a level of support that is in accordance with the child’s best interests.[1]

Despite the wide range of alternative sanctions and measures available, challenges still remain in encouraging the maximum possible use of these alternatives to detention. One key challenge which must be addressed is that of encouraging authorities to make use of alternative measures. In many countries, detention is still seen as the first option for children, even for minor offending, and reliance is still placed on the retributive tools of traditional criminal justice systems. Lawyers should advocate for the measure that suits the best interests of the child, ideally after the individual assessment and/or medical examination so that the lawyer can substantiate his arguments.

Review of Pre-Trial Detention

Under Article 10(2) of the Children Directive, decisions on pre-trial detention must be subjected to periodic review by the court, at reasonable intervals of time, at the request of the child, or the lawyer. A number of guarantees under international human rights law are relevant at this point. The CRC Committee stipulates that that this should take place within 24 hours after arrest and detention.[2] Furthermore, the Committee has recommended that states ensure through strict legal provisions that the legality of pre-trial detention of a child is reviewed regularly, preferably every two weeks.[3] Children in detention, like other detainees, have the right to bring proceedings of their own initiative to challenge the legality of their detention (with the assistance of a lawyer if necessary).[4] The CRC Committee adds that children have the right to a prompt decision following such an action, not later than two weeks after the challenge is made.[5]

 

Right to Information

The Children Directive requires children to be informed both about the limitations on the deprivation of liberty and their right to specific treatment during their detention (Articles 4(1)(b)(iii), 4(1)(c)). Furthermore, the Information Directive provides requires Member States to inform the suspects and accused persons, irrespective of age, of the maximum number of hours or days they may be deprived of liberty before being brought before a judicial authority.[6] Lawyers should ensure that information about these rights are provided to their child client promptly, orally and in writing, and in a way that they are understood.

The stress imposed by the criminal justice process and by detention in has a significant impact on a child’s capacity to understand and retain information. Throughout a period of detention, a lawyer must take particular care to ensure that a child is aware and properly understands the evolving situation, and can participate effectively in preparations for a trial or hearing. Sadly, in many countries, lawyers visit their child clients in detention very rarely, which sometimes adds to their confusion and anxiety. Some children in such circumstances have resorted to contacting their judge or prosecutor to obtain information about their trial.

 

Welfare

Children must be detained separately from adults, unless it is considered to be in the child’s best interests not to do so (Article 12(1), Children Directive).[7] Member States also have to separate children from adults when taken into police custody. Research from the United States shows that children in adult institutions re-offend more often than those placed in juvenile institutions. This may be due to the lack of age appropriate services and supports in adult institutions, and because of the greater risk of being influenced by other detainees.

Member States moreover have to ensure that detained children (a) preserve their health and their physical and mental development (b) ensure their right to education and training, including where  children have physical, sensory or learning disabilities (c) ensure the effective and regular exercise of their right to family life (d) ensure access to programmes that foster their development and their reintegration into society; and (e) ensure respect for their freedom of religion or belief, all in proportion and appropriately to the duration of the detention (Article 12(5)). Out of these requirements, (a) and (e) apply also to situations of deprivation of liberty other than detention (such as police custody). Requirements (b), (c), and (d) apply to situations of deprivation of liberty other than detention only to the extent that is appropriate and proportionate in the light of the nature and duration of such situations. Lastly, children who are deprived of liberty should be able to meet with the holder of parental responsibility as soon as possible, where such a meeting is compatible with investigative and operational requirements (Article 12(6)).

 

Ill-Treatment

At the international and European level, there is a growing recognition of the widespread and intense violence children face in state institutions, including police custody. This concern is also reflected in the general comments of the CRC Committee, which recognized that children in conflict with the law are at increased risk of violence by police officials, which may even amount to torture.

In Zherdev v Ukraine, the ECtHR found that the stripping of a child in police custody of his clothes, without any explanation to the failure of the authorities to provide him with replacement clothes, keeping him in such a state for two and a half hours in a state of uncertainty and vulnerability, and subsequently placing him in a cell with adult detainees for three days amounted to a violation of the prohibition of torture and ill-treatment of Article 3 ECHR. The court has recognised assistance by a lawyer as an important mechanism for preventing torture and ill-treatment.[8]

Safeguarding the welfare of children in detention is not the sole responsibility of lawyers, but lawyers can play a crucial role of monitoring their treatment. If needed, they need to record and report incidences of poor treatment, so that appropriate action can be taken. It must also be pointed out that lawyers can only monitor and report incidences of poor treatment if they visit their child clients in detention regularly.

[1]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/655222/Concordat_on_Children_in_Custody_ISBN_Accessible.pdf p.21

[2] GC 10, para. 83.

[3] Ibid.

[4] Article 9(4) International Covenant on Civil and Political Rights and article 37(d) CRC.

[5] GC 10, para. 84.

[6] Art. 4 (2)(d) Information Directive.

[7] See also Rule 29 Havana Rules.

[8] ECtHR Salduz v. Turkey (2008), appl. no. 36391/02, para. 51.

 

Unit 3: Court Proceedings

The extent to which court procedures are adapted to suit the needs of children varies considerably. Supporting a child through the process of appearing in court involves the management of issues ranging from simple practical problems (can the child see and hear from where they are sitting?) to more complex legal questions (such as whether a child has a right to a public trial, or to privacy).                            

Judges and prosecutors should be informed before the start of the trial about the child’s personality and level of maturity, as well as their economic, social and family background, and any specific vulnerability that the child may have. This is essential so that appropriate procedural adaptations can be identified, and reasonable accommodations made to serve the best interests of the child. If an individual assessment of the child’s needs has not been carried out by this point then it is absolutely necessary before the commencement of the hearing, though lawyers should properly seek for a thorough assessment at a much earlier stage.

Lawyers, judges, and prosecutors may wish to agree on the types of procedural adaptations needed for the court hearing as a preliminary matter at the beginning of the trial. This could help to avoid unnecessary arguments and delays later in the proceedings.

 

Right to Information

Communication challenges for children are manifest in the courtroom. The difficulties with retaining information which occur during pre-trial detention also arise in the stressful and often fast-moving situation in the courtroom. Lawyers should remember that the procedure and formality of the courtroom are likely to be more difficult to understand for a child than they are for most adults. In the same US study mentioned above, one quarter of children surveyed believed that no prosecutor was present in the courtroom during their hearing, or were not sure of their presence.

According to Article 4 of the Children Directive, children have to be informed promptly about general aspects of the proceedings. The preamble of the Directive clarifies that children should, in this respect, be given a brief explanation about the next procedural steps in the proceedings insofar as this is possible, and about the role of the authorities involved. Explaining the process and the order in which various stages occur will help the child understand what is expected of him during the proceedings and when he will be able to give his views to the court. It is equally important to ensure that children are properly informed during the court proceedings, so that they are able to follow them, and participate where appropriate. Judges and lawyers may need to take time to explain to children what is happening, so that they do not feel lost. In addition to procedure, lawyers must also ensure throughout the proceedings (but especially before and during their trial) that their child clients understand the accusations against them, and the possible outcomes.

Article 4 also specifies that children must be informed about their right to be accompanied by a holder of parental responsibility, and the right to appear in person at trial. Children can be involved in criminal proceedings for lengthy periods, and it could be months before their case reaches trial, during which period they might have had multiple encounters with the police. It cannot be assumed that they have remembered all the information they were given previously, including information about their rights. Lawyers must also bear in mind that children are more likely than other clients to struggle not only to understand or retain complex information about their situation, but also to become confused by changes as their cases progress. The responsibility of informing children of their rights is an ongoing one, rather than one which can be discharged at a particular moment.

Preparing for Court

It could be helpful for lawyers to arrange courtroom visits for children, so that they get a better understanding of its layout and procedures in a more relaxed setting. Such visits could also help children feel more at ease during the court hearing itself, and help them participate more effectively.

A helpful tool in explaining the juvenile justice process, its participants, and the order of the proceedings taking place in court is to draw a map of the courtroom, together with the child. While drawing the map, the different actors and their roles can be explained and the order in which they will appear or speak in court. It is also important to explain to the child the goal of the court hearing; what will be decided during the hearing and what is at stake for the child (e.g. is it a pre-trial hearing, a hearing in which a plea will be arranged, a full trial, a review hearing, etc.). The visual representation of the courtroom can help children to understand and to remember what will happen in court. The child can take a photo of the map or take it home with him

 

Right to be Heard

Member States must ensure that children have the right to be present at their trial and take all necessary measures to enable them to participate effectively in the trial, including by giving them the opportunity to be heard and to express their views (Article 16 (1) Children Directive).

Communication in the Courtroom

During court hearings, lawyers should monitor whether the child is being addressed at his level of understanding and maturity, and whether the child understands the information given to him correctly so that the child will be able to give his views. It could be helpful for lawyers to establish ‘ground rules’ on the types of questioning that can and cannot take place in advance of the court hearing. If a judge or prosecutor fails to address the child in an appropriate manner during the hearing, the lawyer should intervene, pointing out the child’s level of understanding and maturity, underscore the importance of the participation of the child in his own trial, and request them to adjust their language in a child-friendly way. It can be particularly challenging to ensure the effective participation of children in legal systems that have adversarial procedures that allow the cross-examination of children.

Depending on the circumstances, adaptations that lawyers may wish to pursue may include:[1]

  • Agreeing not to use questions that put the prosecution’s case to the child (for example, ‘you stole the bicycle, didn’t you?’; ‘you left your house before 7 o’clock, didn’t you?’);
  • Agreeing to use short, simple questions;
  • Agreeing not to use aggressive questioning techniques intended to put pressure on the child;
  • Setting time limits on questioning; and
  • Using visual aids, such as models and body plans

Lawyers may need additional assistance to ensure that children are able to communicate effectively with the court, and they may wish to consider requesting the assistance of an intermediary in order to help ‘interpret’ on for the child.

Practical Adaptations

The right to be heard is not only facilitated by ensuring that children are able to understand and respond, but by creating an atmosphere in which they are able to express themselves as far as possible, without feelings of intimidation and inhibition.[2]Most courtrooms and court procedures are not designed with the interests of children in mind, and lawyers may need to ask for various practical adaptations so that their clients are able to participate effectively, and to make them heard. These might include:

  • Allowing children to sit next to, or close to their parents;
  • Allowing children to sit close to their lawyer;
  • Having all parties seated at the same level as the child;
  • The removal of gowns and wigs, or any other ‘unusual’ courtroom attire; and
  • In certain countries, it might be possible to arrange the court hearing to take place where the child is being detained, so that he does not need to adjust to an unfamiliar environment.

It is also important to ensure that the court hearing takes place in accordance with a timetable that takes into account a child’s inability to concentrate for long periods. This means that where possible, lengthy proceedings should be avoided, and regular breaks should take place.

 

Protection of Privacy

Publicity can have a highly damaging effect on child suspects and accused persons, not only because it affects their welfare and rehabilitation. The right to privacy in juvenile justice proceedings are accordingly protected by the CRC.[3] However, it has also been recognised that the need to protect the privacy of children during criminal proceedings should be balanced against the right to an open hearing, as protected by Article 6 ECHR.

The CRC Committee has recognised that as a general rule, court hearings should take place in private, but that there could be ‘very limited’ exceptions to this rule.[4] This position is reflected to some extent in Article 14 of the Children Directive, which provides that court hearings involving should either usually be held in private, that courts should allow such hearings to take place in private. This is a very loosely worded provision, and the preamble of the Directive suggests that this is due to the differences in Member States’ legal systems.

The ECtHR looked into the issue of private court hearings involving children in the cases of T v. the United Kingdom and V v. the United Kingdom. T and V, who were children aged 10 at the time of the crime and 11 at the time of the trial, were convicted of murder. Although a number of special measures were used, the trial was a public one, and the children’s names were published following their conviction. Whilst recognising the interest in the open administration of justice, the ECtHR remarked that this interest could have been satisfied by providing for ‘selected attendance rights’ and ‘judicious reporting’. In other words, even if interests of justice require trials involving children to be held in public, there should be limitations on the openness of such trials. Lawyers should also note that the CRC Committee and the Beijing Rules have both state that the identity of the child must be kept anonymous.[5]

Lawyers may not always be able to ensure that trials involving child accused persons are entirely closed to the public, and may not even be able to exclude members of the press, but they should ensure that public access to the court proceedings is limited, and that the identity of the child remains unknown to the public.

 After the Hearing

After the court hearing has taken place, lawyers must remember to explain the outcome and the likely implications of the decision. When a decision is taken against the wishes of a child, it is important that he understands how the decision has been reached, and the extent to which his own views have played a role in the considerations and what the decision means for him. Explaining the outcome is of great importance also because it might help the child to understand the consequences of his behaviour, and because it might help him to ‘accept’ the decision. A comprehensible explanation of the reasons behind a certain decision leads to a better insight of the child into his delinquent behaviour.

Explaining the reasons behind a certain decision and the concrete content of the decision should take place in a manner and language that is comprehensible for the child. Children often do not understand the consequences of a certain legal decision, especially when they are first-time offenders (. For example, it is often unclear to a child what a community sentence entails, (e.g. when he should perform the community service, what the work will be, where it will take place and how much time it will take him to complete the measure).

Remedies

 Furthermore, it is important that the child receives information on the possibilities of appeal against the decision that is taken. Article 40(2)(b)(v) CRC provides that the child has the right to have the decision and any measures imposed reviewed by a higher competent, independent and impartial body. In the Guidelines on Child-friendly Justice it is stated that the child’s lawyer, guardian ad litem or legal representative should give the necessary information concerning appeal, after the decision or judgment is given to the child. A private meeting with the child after the court hearing is also of importance to discuss with him the possibilities of appeal and to advise the child on that matter.

[1] These examples are adapted from the England & Wales Criminal Procedure Rules, 3.9(7)(b)

[2] T v. the United Kingdom, para. 85; see also Beijing Rules, Rule 14.2.

[3] Article 40(2)(b)(vii).

[4] GC 10, para. 66.

[5] GC 10, para 66; Beijing Rules, Rule 8.

 

Residential Training

We are not currently providing residential training sessions but we will advertise any further training on this page.

Watch the participants discuss a recent Bucharest training session here.

Since 2009, Fair Trials has been coordinating residential training courses for defence lawyers from across Europe.

Between 2014 and 2016, we worked in partnership with five NGOs in GreeceHungaryLithuaniaPoland and Romania to deliver training to 240 lawyers from all 28 EU Member States.

This programme was designed to provide targeted and practical support to defence lawyers, who work day in, day out as the front-line defenders of the human right to a fair trial. They are crucial to ensuring that new EU procedural rights laws (that Fair Trials helped to secure) are being used in practice to protect their suspects’ rights and to challenge systemic abuse.

The focus of this training was on working with participants and members of our LEAP network to develop practical strategies to uphold defence rights. They also provided the perfect opportunity for participants to meet other lawyers from across Europe and share experiences and ideas for innovative ways of protecting the right to a fair trial.

The in-person training is supplemented by online training courses and materials which are freely available via the Fair Trials website.

The first training session under this project was held in November 2014 in Warsaw. You can find out more about this session here.

Our training is always well received by the lawyers who attend. Previous participants have described it as “first class,” “very practical” and “incredibly well thought-through,” and praised “the knowledge and genuine enthusiasm of the course tutors.”

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