Strengthening Procedural Rights in Surrender Procedure
(1)
Faculty of Law, Pan-European University, Bratislava, Slovak Republic
Abstract
The chapter deals with the strengthening procedural rights in surrender procedure. It is divided into five sections and is summarised with concluding observations. Section 15.1 introduces a general overview in the light of the Roadmap for strengthening procedural rights. Further section can be considered as main text of the chapter. Section 15.2 is focused on the right to interpretation and translation, Sect. 15.3 is focused on the Letter of rights in the European arrest warrant proceedings, Sect. 15.4 is focused on the right of access to a lawyer and Sect. 15.5 deals with the procedural safeguards for children suspected or accused.
There can be no assumption that, simply because the transfer of the requested person is requested by another Member State, that person’s human rights will automatically be guaranteed on his arrival there.1 (Eleanor Sharpston)
Despite the operational success of the EAW it should not be overlooked that the surrender proceeding is not perfect. EU Member States, European and national parliamentarians, groups from civil society and individual citizens have all expressed some concerns in relation to the operation of the EAW and in particular its effect on fundamental rights.2
15.1 General Overview: Roadmap for Strengthening Procedural Rights
The EU and its Member States accept a broad scope of rights, including criminal law guarantees. The Treaty on EU provides that fundamental rights, as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms 3 (hereinafter ‘European Convention’) and as they result from the constitutional traditions common to the EU Member States, shall constitute general principles of the EU’s law.4 Moreover, it provides that the EU recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union 5 (hereinafter ‘EU Charter’), which shall have the same legal value as the Treaty on EU and the Treaty on the functioning of the EU.6 In addition, having regard fact that all EU Member States are members of the United Nations, criminal law guarantees in the EU are anchored also through their national laws accepting the International Covenant on Civil and Political Rights 7 (hereinafter ‘International Covenant’).
In addition to that, the Framework Decision on the EAW respects fundamental rights and observes the principles recognised by the Treaty on EU and reflected in the EU Charter, in particular Chapter VI (entitled ‘Justice’) thereof.8
The Council of the EU argues that for the purpose of enhancing mutual trust within the EU, it is important that, complementary to the European Convention and the EU Charter, there exist EU standards for the protection of procedural rights which are properly implemented and applied in the Member States. 9 In spite of the fact the European Convention is the apex of European standards/guarantees in the Criminal law area, when it was drawn up in 1950, cross-border communication, travel, crime and judicial co-operation and mutual recognition were rare. It was not designed with present levels of cross border crime in mind. Mutual recognition measures, such as the EAW, have changed the nature of cross border criminal proceedings, but the concomitant rights have not been specifically addressed and the rights set out in the European Convention were not designed to offer safeguards in this type of proceedings.10
As shown in the first chapter, in 1999 the European Council held a special meeting in Tampere (Finland) on the creation of the AFSJ11 in the EU.12 It sent a strong political message to reaffirm the importance of this objective and agreed on a number of policy orientations and priorities which would speedily make it a reality. The European Council concluded that enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights.13
Furthermore, in The Hague Programme 14 of 2004, the European Council argued that further realisation of mutual recognition as the cornerstone of judicial co-operation implies the development of equivalent standards of procedural rights in criminal proceedings.15
In addition to Tampere Conclusions and the Hague Programme, the Stockholm Programme 16 of 2009, as well adopted by the European Council, reaffirmed the importance of the rights of the individual in criminal proceedings as a fundamental value of the EU and an essential component of mutual trust between Member States and of public confidence in the EU. The European Council invited the European Commission to examine further elements of minimum procedural rights for suspected and accused persons […].17
On top of that, the introductory section of the Mutual Recognition Programme 18 of 2001 points out that mutual recognition is very much dependent on a number of parameters which determine its effectiveness. These parameters include mechanisms for safeguarding the rights of suspects and the definition of common minimum standards necessary to facilitate the application of the principle of mutual recognition.
As a result, on 30th November 2009—the last day of the Third Pillar structure of the EU—the Council of the EU adopted the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings 19 (hereinafter ‘Roadmap for strengthening procedural rights’). Under the Roadmap, action should be taken at the level of the EU in order to strengthen the rights of suspected or accused persons in criminal proceedings.
The European Commission was invited to submit legislative proposals regarding the measures set out in the Roadmap for strengthening procedural rights, namely:
translation and interpretation,
information on rights and information about the charges,
legal advice and legal aid,
communication with relatives, employers and consular authorities,
special safeguards for suspected or accused persons who are vulnerable, and
to consider presenting a Green Paper on pre-trial detention.
However, a question which begs consideration is how the Roadmap relates to the EAW. Improving the EAW system is a central tenet of the European Commission’s third report on implementation of the Framework Decision on the EAW of 2011.20 The scope of mentioned measures is not focused exclusively on criminal proceedings in general, but some of them are related also to the surrender procedure. As pointed out by the European Commission, there must be adoption and implementation of the measures arising from the Roadmap for strengthening procedural rights to ensure that fundamental rights and freedoms are protected and to improve the mutual trust that is essential to the continued operation of mutual recognition instruments such as the Framework Decision on the EAW.21
Three legislative measures have been adopted so far, namely the Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings,22 strengthening the right to interpretation and translation in the surrender procedure, the Directive 2012/13/EU on the right to information in criminal proceedings,23 strengthening the right to information and introducing a Letter of rights in EAW proceedings, and the Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings […],24 strengthening the right of access to a lawyer in EAW proceedings.25
15.2 Towards the Right to Interpretation and Translation
As pointed out by Bulnes, access to interpretation and translation—free, where necessary—assumes enormous importance nowadays due to the growing phenomenon of globalisation. It results in an ever-greater presence of international and/or foreign dements in the process when linked to other fundamental factors such as immigration, for example. The situation has been highlighted by EU institutions themselves, proof of which is their funding of interesting European projects that have taken place in this field, bringing together the research work of lawyers and linguists alike.26
The right to interpretation and translation are guaranteed at the international level and, naturally, in the Framework Decision on the EAW.
First, as far as the guaranties of the Council of Europe are concerned, the most important guarantees of the European Convention are provisions on the right to liberty and security27 and the right to a fair trial.28 The European Convention stipulates that everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.29 In addition to that, everyone charged with a criminal offence shall be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.30 As regards the relationship between these provisions, the second generally requires less detail and is not as rigorous.31 Moreover, the European Convention stipulates that everyone charged with a criminal offence shall have the free assistance of an interpreter if he cannot understand or speak the language used in court.32
Furthermore, the European Court of Human Rights in case of Kamasinski v. Austria 33 ruled that the interpretation provided should be of a high enough standard to enable the defendant to have knowledge of the case against him and to defend himself. The right applies to documentary material and the pre-trial proceedings. In case of Brozicek v. Italy 34 the Court held that the standard of interpretation must be adequate and that details of the charge must be given to the person in a language that he understands. In case of Cuscani v. UK 35 the Court held that it is for the judicial authorities to prove that the defendant speaks the language of the court adequately and not for the defendant to prove he does not. The interpreter must be competent and the judge must safeguard the fairness of the proceedings.
Second, as far as the guaranties of the United Nations are concerned, the International Covenant stipulates that in the determination of any criminal charge, everyone shall have the free assistance of an interpreter if he cannot understand or speak the language used in court.36
Third, as regards the Framework Decision on the EAW, it stipulates ‘just’ that a requested person who is arrested for the purpose of the execution of an EAW, in accordance with the national law of the executing Member State, shall have a right to be assisted by an interpreter.37 Taking into the Roadmap for strengthening procedural rights, the European Council argues:
The suspected or accused person must be able to understand what is happening and to make him/herself understood. A suspected or accused person who does not speak or understand the language that is used in the proceedings will need an interpreter and translation of essential procedural documents. Particular attention should also be paid to the needs of suspected or accused persons with hearing impediments.38 (emphasis added).
In order to strengthen this right the EU introduced strengthened guaranties in EAW proceedings.
15.2.1 Legal Basis: Directive 2010/64/EU on the Right to Interpretation and Translation
In October 2010 the European Parliament and the Council of the EU adopted the Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings 39 (hereinafter ‘Directive on the right to interpretation and translation’). It is addressed to the Member States of the EU, excluding Denmark.40 They shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 27th October 2013. It is based on the Treaty on the functioning of the EU, which stipulates that minimum rules concerning the rights of individuals in criminal proceedings may be adopted by means of directives to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial co-operation in criminal matters having a cross-border dimension.41
As far as the subject matter of the Directive on the right to interpretation and translation is concerned, the Directive lays down rules concerning the right to interpretation and translation in criminal proceedings and proceedings for the execution of an EAW.42 Thus, the rights provided for in this Directive should also apply, as necessary accompanying measures, to the execution of an EAW within the limits provided for by the Directive. Executing Members States should provide, and bear the costs of, interpretation and translation for the benefit of the requested persons who do not speak or understand the language of the proceedings.43
As regards the scope of the Directive on the right to interpretation and translation, it applies to persons from the time that they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether they have committed the offence, including, where applicable, sentencing and the resolution of any appeal.44
The Directive on the right to interpretation and translation stipulates provisions on certain rights, among others: the right to interpretation, the right to translation of essential documents, the provisions on the quality of the interpretation and translation, and non-regression.45 As far as the EAW is concerned, as is emphasised, the most important are provisions on the right to interpretation and the right to translation of essential documents.
15.2.2 Right to Interpretation
Under the Directive on the right to interpretation and translation, in proceedings for the execution of an EAW the executing Member State shall ensure that its competent authorities provide persons subject to such proceedings who do not speak or understand the language of the proceedings with interpretation.46 Interpretation shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.47
It should be noted that under the Directive the native language is not required. Interpretation should be provided primarily in the native language of the suspected or accused persons,48 however, it accepts also any other language that they speak or understand in order to allow them fully to exercise their right of defence.49
In comparison to the European Convention, as shown, the European Court of Human Rights ruled that the interpretation provided should be of a high enough standard to enable the defendant to have knowledge of the case against him and to defend himself, and the standard of interpretation must be adequate and that details of the charge must be given to the person in a language that he understands.
15.2.3 Right to Translation
Under the Directive on the right to interpretation and translation, in proceedings for the execution of an EAW the executing Member State shall ensure that its competent authorities provide any person subject to such proceedings who does not understand the language in which the EAW is drawn up, or into which it has been translated by the issuing Member State, with a written translation of that document.50
Similarly as in case of interpretation, under the Directive the native language is not required. Translation should be provided primarily in the native language of the suspected or accused persons,51 however, it accepts also any other language that they speak or understand in order to allow them fully to exercise their right of defence.52
15.3 Letter of Rights in European Arrest Warrant Proceedings
Broadly speaking, the right to information has been recognised as a fundamental human right.53 In the Criminal law area, the right to information is considered to be a crucial aspect of the overall right to defend oneself.54
The right to information is guaranteed at the international level and, naturally, in the Framework Decision on the EAW.
First, as far as the guaranties of the Council of Europe are concerned, the right to information is not explicitly mentioned in the European Convention. Taking into account the provisions on the right to a fair trial,55 everyone charged with a criminal offence shall be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.56
In spite of the fact the right to information is not explicitly mentioned in the European Convention, there is case-law of the European Court of Human Rights that requires judicial authorities to take positive measures in order to ensure effective compliance with the Conventions. One could point at the decisions Padalov v. Bulgaria 57 and Talat Tunc v. Turkey. 58 In these cases, the European Court of Human Rights stated that authorities should adopt an active stance in informing the suspect about the right to free legal aid. Furthermore, in the case of Panovits v. Cyprus 59 it stated that authorities have a positive obligation to provide the suspect with information on the right to legal assistance and free legal aid if the conditions for it are fulfilled.
Second, as far as the guaranties of the United Nations are concerned, relevant provisions of the International Covenant contain very similar provisions as aforementioned guaranties of the European Convention. International Covenant stipulates that at the time of arrest anyone who is arrested shall be informed of the reasons for his arrest and shall be promptly informed of any charges against him. In addition to that, in the determination of any criminal charge against him, everyone shall be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.60
Third, as regards the Framework Decision on the EAW, it stipulates ‘just’ that when a requested person is arrested, the executing competent judicial authority, in accordance with its national law, shall inform that person of the EAW and of its contents […].61 Taking into the Roadmap for strengthening procedural rights, the European Council argues:
A person that is suspected or accused of a crime should get information on his/her basic rights orally or, where appropriate, in writing, e.g. by way of a Letter of Rights. Furthermore, that person should also receive information promptly about the nature and cause of the accusation against him or her. A person who has been charged should be entitled, at the appropriate time, to the information necessary for the preparation of his or her defence, it being understood that this should not prejudice the due course of the criminal proceedings.62 (emphasis added).
In order to strengthen this right the EU introduced, among others, the Letter of rights in EAW proceedings.
15.3.1 Legal Basis: Directive 2012/13/EU on the Right to Information in Criminal Proceedings
In May 2012 the European Parliament and the Council of the EU adopted the Directive 2012/13/EU on the right to information in criminal proceedings 63 (hereinafter ‘Directive on the right to information’). It is addressed to the Member States of the EU, excluding Denmark.64 They shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 2nd June 2014. It is based on the Treaty on the functioning of the EU, which stipulates that minimum rules concerning the rights of individuals in criminal proceedings may be adopted by means of directives to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial co-operation in criminal matters having a cross-border dimension.65
The Directive on the right to information introduced two novelties—the Letter of rights on arrest, which shall apply to criminal proceedings in general, and the Letter of rights for persons arrested on the basis of an EAW, which shall apply to surrender proceedings under the Framework Decision on the EAW. Thus, the Directive lays down, rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them, and rules concerning the right to information of persons subject to an EAW relating to their rights.66
It should be explained why the EU is better placed to take action than its Member States. The EU is establishing its own, unique system of judicial co-operation based on the principle of mutual recognition throughout the EU.67 Such a novel system calls for a guarantee of uniformly high standards of fundamental procedural rights protection in the EU. Considering that there is wide variation between Member States on the content, means and timing of information on rights and on the charge provided to suspects and accused persons, it is unlikely that Member States acting individually would be able to establish a sufficiently consistent standard of provision of information. There are no indications that Member States would provide for raising and approximation of standards of informing accused persons of the charge against them. Whilst a majority of Member States of the EU already use largely identical means of informing accused persons of the charge, there is still significant variance in the precise way and timing of the provision of this information which leads to a divergence of standards in relation to this information across the EU.68
Furthermore, it should be noted that the Directive on the right to information promotes the application of the EU Charter and the European Convention as interpreted by the European Court of Human Rights. However, as shown, it lays down minimum rules with respect to the information on rights. Member States may extend the rights set out in the Directive in order to provide a higher level of protection also in situations not explicitly dealt with in the Directive. The level of protection should never fall below the standards provided by the European Convention as interpreted in the case-law of the European Court of Human Rights. On the one hand, this is without prejudice to information to be given on other procedural rights arising out of the EU Charter, the European Convention, national law and applicable EU law as interpreted by the relevant courts and tribunals. On the other hand, once the information about a particular right has been provided, the competent authorities should not be required to reiterate it, unless the specific circumstances of the case or the specific rules laid down in national law so require.
As regards the scope of the Directive on the right to information, it applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings. Thus, it applies until the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal. Where the law of a Member State provides for the imposition of a sanction regarding minor offences by an authority other than a court having jurisdiction in criminal matters, and the imposition of such a sanction may be appealed to such a court, the Directive shall apply only to the proceedings before that court, following such an appeal.69