When it comes to human rights, it can feel that there is a lot to despair about at the moment – and there certainly is. The shared values that underpin the European Union face unprecedented threat from populist, nationalist and anti-minority movements. The rule of law is in crisis in some Member States, most notably Poland and Hungary. Governments are strangling independent civil society and free speech to prevent independent critique of and opposition to policies that violate human rights and the rule of law. The austerity agenda has also starved investment in fair and effective criminal justice.
The EU sets amongst its goals, to promote peace, its values and the well-being of its citizens, and to offer freedom, security and justice. These are laudable principles but how did they translate in practice?
It hasn’t been perfect, but there has also been progress over the last decade in the area of criminal justice. Taking a step back, the Procedural Rights Roadmap introduced by the EU over the course of the last decade provides a framework that has begun to make a real difference in the lives of some suspects across Europe.
It didn’t always look like this would be the case. In the aftermath of 9/11, the EU made it much quicker and easier to extradite people through the European Arrest Warrant, its fast track extradition measure. Thousands of people were being extradited around Europe every year without any questions asked. The tool had undoubtedly been crucial at bringing some people to justice, but it undoubtedly came at the high cost of basic human rights.
This started to change at the end of 2009 when the EU agreed to create a series of minimum standards for defence rights binding on all EU countries. The significant achievements of the EU in relation to the protection of fair trial rights should be celebrated and the importance of continued work to make defence rights in Europe a reality should be emphasised.
The past decade has witnessed a new approach to justice, freedom and security, recognising the need to combine increased judicial cooperation in criminal matters with protection of the interests and needs of citizens whose lives have too frequently been destroyed by the injustices arising from the failure to respect the fundamental right to a fair trial.
Under the Roadmap, six directives were introduced. These six directives address key aspects of the right to a fair trial: interpretation and translation, the right to information, the right to access a lawyer, the right to the presumption of innocence, the right to legal aid, and the rights of children.
The Roadmap was and remains an ambitious programme seeking to introduce minimum standards across an entire continent, with all of the different legal systems within it. That’s no mean feat. It wasn’t so long ago that we, at Fair Trials, would see cases where there wasn’t an interpreter, or where a random person had been pulled in off the street to try and help a suspect understand what was happening. The right to interpretation is now much better protected under law.
Under the Information Directive, there is now a legal requirement to give people accessible information on their rights when they are arrested. Further, domestic practices, which have long hidden information from the defence are being challenged. The impact of these Directives can and already has started to influence the way millions of people suspected or accused of a crime are treated every year in Europe.
But that doesn’t mean that the job is done.
It’s still early days. The first of the Roadmap Directives only came into force in October 2013. That may feel like a long time ago, but implementing laws in practice takes time. Fair Trials has heard from LEAP (our network of lawyers, NGOs and academics across Europe) that many lawyers and judges still don’t think of EU law as being that relevant to the procedural rights of defendants. This needs to change.
In the current climate, effective implementation, not just of the Roadmap but also the EU Charter on Fundamental Rights, is crucial. We’ve been given a framework, but everyone still has a role to play to ensure that these protections take effect.
We need lawyers to be raising the right legal arguments and asking the right questions of the court. There is also a role for national courts, who through the Court of Justice of the European Union (“CJEU”) have a responsibly to oversee the protection of fair trial rights and help individuals to uphold their rights during the course of national criminal proceedings. Civil society organisations across the EU need to ensure they are playing their part by developing and delivering training, undertaking advocacy at a regional and national level, or through strategic litigation.
There is also more to be done by European institutions, who need to ensure that where domestic authorities aren’t doing enough, that enforcement action is initiated. The Commission can also support implementation through interventions in cases before the CJEU, by ensuring domestic courts’ rights or obligations to refer questions to the CJEU are respected, and by supporting training on EU law and other initiatives to encourage references.
Although much work is needed to ensure their effective implementation, the six procedural rights directives and associated guidelines offer real promise of an EU area of security, freedom and justice, and that is something to celebrate.