King's Student Law Review

Human rights play a key role in the determination of criminal law. And as an EU citizen, you are free to move and cross borders. But, would criminal proceedings be initiated against you, are your rights the same wherever you are? Do you always get a translation of the proceedings initiated against you in another Member State? Do all Member States ensure access to a lawyer for all? A few years after the adoption of the European Arrest Warrant; whose implementation has brought many issues regarding fundamental rights (denounced by human rights organisations such as Fair Trials International[1], such questions are crucial. It seems that the first step constituted by the EAW now brings the EU to a furthering of its intervention in criminal matters.

To tackle these issues, three EU Directives on defence rights constitute an attempt to harmonise national rules in order to provide a better access to defence in its plain meaning. I had the chance to attend a workshop organised by Fair Trial International in Strasbourg, France. This London-based organisation focuses on defence rights in the EU and its workshop enabled me to learn about the new legal instruments. It is first necessary to understand the context of the adoption of the Directive (I) and then an examination of each Directive will follow (II).

I. The Context of the Drafting of the Directives

In the 1990s, the need for cooperation between prosecutors, police agents and judges became obvious with the rise of cross-border movement. The mutual recognition of their criminal legal system by all Member States following the adoption of the EAW implies the assumption that the same level of respect of fundamental rights was ensured in all of the 28 EU countries, which obviously necessitates further harmonisation. Therefore, minimum standards of procedural rights were progressively adopted through a “Roadmap” Resolution of the Council (Resolution 2009/C 295/01 of 30 Nov 2009) followed by Directives adopted under the codecision procedure (i.e. the involvement of the directly elected European Parliament). The result consists of three Directives: one on the right to interpretation and translation, one on the right to information, and the last on the right of access to a lawyer. These instruments should allow an alignment of the EU on the fair trial as ensured in the European Convention on Human Rights (“ECHR”) expressly referred to in the Roadmap Resolution. The EU measure is supposed to allow a more efficient implementation of the rights granted by the ECHR and notably  articles 5 and 6[2].

II. The Directives

A. Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings

This Directive came into force in October 2013 and constitutes the most consensual legal instrument. It is nevertheless a necessary one: in 2010, 33% of the people who contacted Fair Trial International from EU countries reported being denied access to an interpreter or translation of key documents. It has been six months since its transposition date. However, measures have been taken in around 20 Member States only, which do not always fully implement the Directive. Actually, the Directive is broad enough to let most Member States argue that they are already complying with the Directive. Furthermore, some points are missing for the implementation of the Directive in order for it to be efficient. The Directive is designed to ensure a right to interpretation free of charge, both for proceedings before investigating and judicial authorities and between suspects and lawyers. The translation of essential documents must also be available free of charge and in a reasonable time, which complies with the EU principle of access to documents. Any decision depriving the person of its liberty (Article 3) constitutes an “essential document”. Furthermore, the interpretation and translations must be of sufficient quality to ensure that the persons have knowledge of the case against them. Countries should therefore establish registers of qualified interpreters and translators. This is a major issue in practice, raising the point of the need for official training and qualification of translators and interpreters within the EU. Lawyers have reported translation issues such as having to find an interpreter themselves in urgency cases -whether a professional or not, depending on luck. Moreover, in some Member States, there is no guarantee of independence and impartiality of the interpreter, who has sometimes been working with the same police officers or tribunal for years. Some lawyers report having seen their clients being told to give up their defence by an interpreter instead of being translated what was necessary. Finally, key elements of the Directive, notably “criminal proceedings”, are not given a definition and will have to be defined by EU judges in regard of the ECHR jurisprudence, in the absence of an autonomous notion in EU law.

B. Directive 2012/13/EU on the right to information

In 2011, 15% of the people who contacted Fair Trial International from EU countries reported being denied information about their rights or the reason for their arrest. The Directive, to enter into force in June 2014, is therefore welcome in that it requires all suspects and accused persons to receive information as well as access to the case file in time to prepare a defence.

Here again, some elements can give rise to concerns. Article 2 of the Directive says that it applies “from the time persons are made aware by the competent authorities that they are suspected or accused of having committed a criminal offence”. It means that people thinking they are still cooperating with the police but in fact already suspected are not protected. The time of awareness is therefore a questionable choice that leaves the police free to inform a person that he or she is suspected depending on national laws. The problem of suspected persons being first called as a witness despite the suspicion, and therefore unable to benefit from the protection of defence rights, is not faced. Article 3(2) then allows for the provision of information “orally or in writing”, the former being likely to be used to the Member States rather than the latter. Article 7, in contrast, is particularly welcome as it allows that the “documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively the lawfulness of the arrest or detention” be made available. This is particularly relevant in post-Soviet legal systems where the public prosecutor can keep the documents,though the typical reserve “in accordance with national laws” is part of this provision as well.

C. Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and European Arrest Warrant Proceedings

This Directive, in line with the case law of the ECHR, is aimed at ensuring the right to access to a lawyer in due time and before questioning by law enforcement authorities (subject to exceptional circumstances), the right to confidentiality of communications with a lawyer, the right to have a third person informed on the detention (subject to exceptional circumstances), to communicate with third person(s) while in detention, to communicate with consular authorities. The most striking point there is that a right of the lawyer to “effectively” take part in the questioning is ensured by Article 3(2)(b). Further provisions and specific rights are related to the European Arrest Warrant Procedure, which is welcome by human rights organisations who often denounced the dangers of the warrant without a real and effective harmonisation of defence rights throughout Europe[3].

Conclusions

The three Directives establish minimum protection rules that are undoubtedly welcome and even necessary after the introduction of the European Arrest Warrant and the growing cooperation between Member States in criminal matters. Beyond issues of implementation, the question of how these Directives will be interpreted by the ECJ remains to be answered, as their provisions and the absence of some definitions give a certain margin of appreciation to the Member States, which could go as far as to contradict their objectives.