International FES Prague Seminar for Experts on the topic

Transcription

1 International FES Prague Seminar for Experts on the topic Minimum Standards in Criminal Procedure. Conditions for Harmonisation in the European Union. (Prague, 26 September 2006) Panel I Methods for Implementing Minimum Standards for Criminal Proceedings in Selected EU Member States In connection with the creation of a Europe of freedom, security, and justice, the need to supranationalise criminal law, not only in terms of unifying substantive criminal law, but also in terms of unifying criminal procedure, is becoming more apparent. The issue of fundamental procedural guarantees in criminal proceedings (minimum standards) is, therefore, also a fundamental issue in EU law. Although the principle expressed by the European Court of Justice in the Casati case persists, i.e., that criminal law remains fully in the competencies of the Member States, the sovereignty of the state over the performance of the criminal jurisdiction, however, does not exclude cooperation in fighting criminal activity. It has been emphasised that one of the cornerstones of judicial cooperation in criminal matters is the principle of mutual recognition of decisions. The principle of mutual recognition and the necessary harmonisation of legal regulations should facilitate the protection of rights of persons, with the extent of mutual recognition of decisions in criminal proceedings being closely tied to certain minimum standards of protection of the rights of persons suspected and charged. By right then is the question asked what the content of these minimum procedural guarantees should be and in what form they should be advanced. The Draft Council Framework Decision on Certain Procedural Rights in Criminal Proceedings throughout the European Union [COM(2004)328] contains these common minimum standards: - the right to legal representation from the onset of the criminal proceedings - the right to a written notification of the suspect s (defendant s) rights (Letter of Rights) - the right to free interpretation and translation - the right to specific attention to persons who are unable to follow the proceedings - the right to communicate with consular authorities (in the case of foreigners). Each Member State has a different opinion on the content of these minimum guarantees. It is, of course, possible to ask the question why there is not, for example, the principle of presumption of innocence or the right to silence and the right to avoid self-incrimination. These are certain minimum standards that the Member States are able to agree on. These are not above-the-standard rights, but minimum guarantees that are common to all Member States. It is necessary to emphasise the word common, while counterbalancing the rights of the defendant and the injured party and a citizen s rights to security and safety. The Federal Republic of Germany fulfils the minimum standards and considers the implementation of the aforementioned minimum standards to be necessary and meaningful. The changes to penal regulations in the Czech Republic and Hungary after 1989 were extensive and structural and allow one to conclude that both new Member States achieved the procedural level of protection of the rights of parties to criminal proceedings that is usual in Europe. The valid legal regulations, thus, surpass the proposed minimum standards, and in the

2 event of the implementation of the Framework Decision, no significant changes to criminal law will be required in either Member State. The participants agreed that, in terms of content, they did not have significant material reservations to the proposed minimum standards. The question is the form in which this agreement on content should be promoted. The minimum standards for criminal proceedings can be implemented using a number of methods: 1) Using the acts of the First Pillar of the EU secondary law of the European Community 2) Using the acts of the Third Pillar of the EU framework decisions 3) Using the decision-making functions of the European Court of Justice 4) Using the decision-making functions of national courts The participants agreed that they are within the framework of the Third Pillar (judicial cooperation); therefore, the instruments of the Third Pillar (framework decisions) are the most suitable for implementation of the minimum standards. The complete harmonisation of criminal procedure is not possible; therefore, it is necessary to go the route of partial steps, and the proposed Framework Decision is one of these. At the same time, however, it is necessary to differentiate those cases where basic rights are encroached upon (European Arrest Warrant) and cases where, conversely, certain basic rights are guaranteed (minimum standards). The Czech representative called attention to the drawbacks of framework decisions, which are binding on the Member States, as concerns the results that are to be achieved, as the form and means are left with the domestic bodies. Therefore, there is the threat that each Member State will implement the minimum standards in their own way, again resulting in differences in the minimum procedural guarantees. Despite this criticism, the participants agreed that framework agreements are, at this time, the only possible instrument for the implementation of the aforementioned minimum standards for criminal proceedings. Panel II Engaging Member States in Judicial Cooperation in Criminal Matters (European Arrest Warrant) In the introduction to this discussion block, it was stated that the idea of replacing formal extradition proceedings with the surrender of persons that respects basic human rights in relation to persons evading justice has already appeared in Corpus Juris as one of the components of European justice. In comparison with Corpus Juris, it is above all the speed with which the European Arrest Warrant was realised that is remarkable. This speed was perhaps due to the political support of the European Council in the matter of replacing extradition procedures with surrender and then especially due to understanding surrender as one of the key measures in the fight against terrorism, which, after the attacks on 11 September 2001, become especially relevant. The fact that the European Arrest Warrant was successfully pushed through is all the more surprising because there were significant problems with the ratification of the two previous extradition treaties prepared within the EU, i.e., The Convention of 10 March 1995 on Simplified Extradition Procedure between Member States of the European Union, and The Convention of 27 September 1996 relating to Extradition between Member States of the European Union, which were not so innovative as the European Arrest Warrant. It appears that using an entirely new, albeit radical, solution is more acceptable to the Member States than significant interference with the concept of extradition.

3 Although the European Arrest Warrant was included in the context of the fight against terrorism, it, at the same time, goes beyond this area, as it also extends to other criminal activity. Here, however, the increased need to fight terrorism accelerated development. The result of this development was the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and Surrender Procedures between Member States of the European Union. It was stressed that the European Arrest Warrant is built on the principle of mutual trust, specifically trust in the structure and functioning of the judicial systems of the Member States and the ability of the Member States to ensure a fair process (fair trial). This principle was also confirmed by the Court of Justice of the European Communities, which stated: "Member States have mutual trust in each other s criminal justice systems, and each recognises the criminal law valid in each Member State even through it may arrive at a different result when applying its own law." The European Arrest Warrant is the first specific institution implementing the principle of mutual recognition in the field of criminal law. This principle, within the area of freedom, security and justice established by the Amsterdam Treaty, aims to replace traditional relationships founded on cooperation, which have hitherto prevailed, with a system of free movement of decisions of judicial bodes in criminal matters, be they decisions concerning the same or decisions concerning other matters. The mentioned principle reflects the fact that the decision-making process of judicial bodies can be sufficiently flexible to adjust to the conditions of the free movement of persons only if this free movement of persons is tied to the free movement of decisions, i.e., the mutual recognition of decisions. In addition to extradition, which it basically replaces, the European Arrest Warrant also significantly affects the area of recognition and performance of foreign penal decisions. The legal wording of the European Arrest Warrant was accepted on the level of the EU in the form of a framework decision, i.e., an instrument of intergovernmental cooperation in the Third Pillar of the EU, conditioned by its unanimous adoption by all Member States and requiring its introduction in each Member State via domestic implementing legislation. It stems from the nature of the framework agreement that there are problems brought on by the European Arrest Warrant and pointed out by the participants. Specifically, the problems relate to the application of the principle of bilateral impunity. With respect to the European Arrest Warrant, a significant change from extradition is the formulation of the principles of bilateral impunity (consisting of the requirement that the act for which extradition or, with respect to the European Arrest Warrant, surrender is requested be a criminal act in both the Member State requesting the surrender and the Member State being requested to execute the surrender). The framework decision identifies 32 types of criminal activity where under the condition that the law of the Member State whose judicial body issued the European Arrest Warrant imposes a maximum sentence of three years of imprisonment for such criminal act bilateral impunity of the act will not be a requirement when surrendering on the basis of the European Arrest Warrant. With respect to all other types of criminal activity, surrender can be tied to the condition that the act for which the European Arrest Warrant was issued is a criminal act in the Member State being asked to execute the surrender. It is becoming apparent that some criminal acts are defined too broadly (e.g., computer crime) and that a different definition of the acts that do not require bilateral impunity occurs upon implementation into national legislation (see, for example, Italy). The European Arrest Warrant is in itself a type of fiction of common state territory, as the judicial body of one Member State decides on the execution of the decision made by the judicial body of another Member State, which decision is, in all other respects, effective in the former Member State s territory, and, on the basis of the decision, which is tied only to legally

4 defined criteria and free of political and administrative elements, leads to the surrender of a person from the territory of one Member State to the territory of another Member State for the purposes of criminal proceedings or the serving of a sentence. This fiction of a common state territory is, of course, limited by the purpose that its serves: Member States remain independent sovereign states which are defined, among other things, as states having their own territory and the surrender on the basis of the European Arrest Warrant is in many respects built on many of the same principles as extradition, naturally modified by the principle of mutual trust, which find their application namely in the decision-making processes of the judicial bodies of the executing state on the enforcement of the European Arrest Warrant. Participants from the Czech Republic and Germany expressed certain concerns when it comes to substantial restriction of the leading principles of extradition, namely those whose purpose was the protection rights of the persons whose surrender was requested. In both countries, these concerns were the subject matter of political and professional discussion and even led to a complaint being filed with their national Constitutional Court. On the basis of accession to the EU, the Czech Republic was obliged to implement the European Arrest Warrant as at the accession date, i.e., 1 May 2004, as a part of the EU acquis. The amendment to the Criminal Code, which contains, among other things, even provisions on domestic implementation of the Framework Decision, was prepared on time, but ignited extensive political debate, the result of which being an amendment that was not adopted until 1 November The Criminal Code amendment in question was also the subject of the complaint filed with the Constitution Court of the Czech Republic. Claimed was the breach of Article 14(4) of the Charter of Human Rights and Freedoms, according to which a citizen of the Czech Republic cannot be forced to leave his/her home country. The Constitutional Court, however, did not find that the legislation was in violation of constitutional order. Also in the Federal Republic of Germany was the law implementing the Framework Decision the subject matter of a constitution complaint. On 18 July 2005, the Federation s Constitutional Court cancelled the Act on the European Arrest Warrant, which brought on a host of problems. The new implementing law (the Act on International Legal Assistance in Criminal Matters - IRG) did not become effective until 2 August In Hungary, the respective framework decision was implement by a law from 2003, with no serious objections being made or complaints filed with this country s Constitutional Court. Despite the aforementioned objections, the participants agreed that the European Arrest Warrant is a significant step forward and opens up a new era of cooperation in criminal matters. Panel III Advancing the Protection of the Rights of Parties to Criminal Proceedings in the EU Member States When contemplating the protection of the rights of parties to criminal proceedings, it is necessary to mention the conflicting nature of the protection of human rights in criminal procedure. Thus, criminal procedural guarantees enjoyed by the defendant must be balanced with the rights of the injured party and the state s interest in effective penal recourse. 1. Domestic protection. It has been stressed that each Member State has at its disposal its own catalogue of basic procedural guarantees, and the protection of the rights of parties to criminal proceedings, i.e., both the defendant and the injured party (victim of a criminal act), is mainly the role of the national courts. Here, a significant role is played by national constitutional courts, to which a party to criminal proceedings can turn with an individual

5 complaint, provided his/her constitutionally guaranteed rights were violated during criminal proceedings. An example can be the European Arrest Warrant, which was the subject matter of constitutional complaints in the Czech Republic and the Federal Republic of Germany. 2. International protection. The protection of the rights of parties to criminal proceeding on the European continent is mainly the role of the European Court of Human Rights in Strasbourg (the European Court ), i.e., an institution created within the framework of the international organisation of the Council of Europe on the basis of the European Convention on Human Rights and Fundamental Freedoms. This document was signed in Rome on 4 November 1950 and contains a generally recognised catalogue of basic rights and has become a precedent for the constitution of a number of states. As part of this presentation, it has been mentioned that all of the EU Member States are contractual parties to the European Convention. Thus, the legal systems of the Member States correspond to the requirements of Article 5 (right to liberty and security) and Article 6 (right to a fair trial/due process) of the European Convention. The participants emphasised the influence of the judicature of the European Court for Human Rights on national laws, with some examples of such decisions being cited. 3. Community protection: The European Community was created mainly to attain economic goals. The protection of human rights was considered something that was not within the competency of the European Community, i.e., something outside acquis communautaire. The issue of human rights was automatically left to the European Court and the mechanisms created under the Convention. However, through its activities, the European Court of Justice more and more often came to the conclusion that economic relations and human rights are tied very closely together. In the beginning, the European Community did not have its own human rights legislation, but this did not mean that human rights were not protected at all in within its territory. Indeed, each Member State had its own charter of human rights and, at the same time, was a member of the Council of Europe and a signatory to the Convention. It is the existence of the mechanism of protection of human rights on the basis of the Convention that allows us to excuse the initial reluctance to anchor basic human rights in the documents of the European Community. The term basic human rights was introduced in the binding documents of the European Community in a sort of retrospective manner thanks to the judicature of the European Court of Justice. The judicature of the European Court of Justice, which referred to the Convention, became the main source of human rights legislation in the European Community. For the first time, the term human rights appeared in a binding document of the European Community in 1997 Article 6 of the Treaty of the European Union by a direct reference to the Convention. It was emphasised that the Union respected basic rights as guaranteed by the European Convention on Human Rights and Fundamental Freedoms and as stems from the constitutional traditions common to the Member States such as the general legal principles of the Community. Thus, basic rights form an integral part of general legal principles, adherence to which is secured by the European Court of Justice. The Council Framework Decision on Certain Procedural Rights in Criminal Proceedings throughout the European Union, which contains minimum procedural guarantees for the defendant and the injured party, has been mentioned. The legal wording of the procedural guarantees for parties to criminal proceedings in the EU Member States also forms a multilevel system, whose components should be in mutual accord. The foregoing stems from the already stated jurisdictional standing of the Convention. The constitutional level of the regulations of any of the Member States cannot be in violation of the Convention, as each of the Member States is at the same time a signatory to the Convention. Accord between Community legislation and the Convention can be deduced

6 logically, as EU legislation governing due process (fair trial) was, in fact, taken from the documents of the Council of Europe or refers to the judicature of the European Court. Due process (fair trial) must be carried out at the level of domestic bodies in the same way that this principle must be applied to the European Court itself and in proceedings in front of the European Court of Justice. Therefore, it is not so important which legal norm governs procedural guarantees; what is important is that the principles of due process (fair trial) be followed in each process. Participants from the new Member States (Czech Republic, Hungary) stated that the current legal regulations governing human rights and freedoms in criminal proceedings and their procedural protection is at the level usual abroad and can be defended from both national and international perspectives. The Czech representative stated that the system of protection according to the European Convention is, however, still the one that is used the most, is the most widespread, and is very well elaborated. This system masters the principle of solidarity. The system of protection of due process (fair trial) must be effective at the international level. Each member state ensures that all persons under their jurisdiction enjoy the rights stipulated in the Convention. Practically all of the states in the territory of the European Community have embodied the Convention in their national legislation, giving individuals the possibility to appeal to the provisions of the Convention in front of national courts. At the same time, they have bound themselves to create a functioning judicial system in the national courts that will fulfil the conditions of due process stipulated in the Constitution. It was pointed out in the discussion that, in this way, a new system of protection of human rights that is parallel to the system of protection of human rights under the Convention and that in a way could compete with it began to be created. It was shown that the two standards of protection of human rights could develop separately. Another risk is perhaps also the procedural battle between both courts about which one will have the stronger position in respect of the other. Advancing basic guarantees of parties to criminal proceedings at the Community level through framework decisions is, thus, not seen in the Czech Republic as urgent. The Federal Republic of Germany, despite certain objections to this Framework Agreement (it does not contain the basic principles of the presumption of innocence or the right of silence), sees the implementation of minimum standards through the framework decision as necessary. The Hungarian representative also stated that the guarantee of minimum standards in criminal proceedings at the Community level should not lead to the weakening of the protection of human rights at the procedural as achieved in Europe and sees their implementation rather as a strengthening of the protection of parties to criminal proceedings. Finally, the participants mentioned some disputable issues related to legal regulations de le lata and to proposals de lege ferenda in their respective states (e.g., proceedings against a fugitive in Hungary, the legal regulations on wiretapping in the Czech Republic). Attention was called to some tendencies leading to the deterioration of basic rights, especially in connection with the fight against terrorism.