Submission Fair Trials International s submission to the European Commission Consultation on the 2013 EU Citizenship Report EU citizens Your rights, your future 9 September 2012
About Fair Trials International Fair Trials International (FTI) is a UK-based NGO that works for fair trials according to internationally recognised standards of justice and defends the rights of those facing charges in a country other than their own. Our vision is a world where every person's right to a fair trial is respected, whatever their nationality, wherever they are accused. FTI pursues its mission by providing individual legal assistance through its expert casework practice. It also addresses the root causes of injustice through broader research and campaigning and builds local legal capacity through targeted training, mentoring and network activities. Although FTI usually works on behalf of people facing criminal trials outside of their own country, we have a keen interest in criminal justice and fair trial rights issues more generally. We are active in the field of EU Criminal Justice policy and, through our expert casework practice we are uniquely placed to provide evidence on how policy initiatives affect defendants throughout the EU. For further information, contact: Catherine Heard Emily Smith Head of Policy Policy Officer Fair Trials International Fair Trials International 020 7822 2379 020 7822 2381 Catherine.Heard@fairtrials.net Emily.Smith@fairtrials.net
Citizenship and criminal justice in the EU 1. Fair Trials International (FTI) welcomes this opportunity to contribute to the European Commission s consultation on the 2013 EU Citizenship Report EU citizens Your rights, your future. As a charity focusing on protecting the fair trial rights of those arrested in a country that is not their own, our observations refer to those aspects of our work where we have identified problems with EU citizens enjoying full protection of their rights. 2. Every national of an EU country is a citizen of the European Union, and as a result is entitled to enjoy the rights set out in the Charter of Fundamental Rights of the EU. These rights apply not only if a person lives in another EU country, but also when travelling or staying in another Member State. The way that citizens are treated in criminal proceedings is a central part of this. In a Europe with open borders, more people are choosing to work, live and travel in different Member States and the numbers of nonnational EU citizens involved in criminal justice systems is increasing throughout the Union. 3. As Viviane Reding has said, EU citizens should never feel that their rights are weakened because they left home. Nonetheless, this is what can happen when people are sent abroad to stand trial. At Fair Trials International, we see hundreds of cases each year that demonstrate the truth of this statement. 4. The entering into force of the Amsterdam Treaty 1 in 1999 saw the start of a new era for EU criminal justice matters, with unprecedented emphasis placed on increasing and improving the cooperation between EU Member States. The single market concept was borrowed in an effort to streamline procedure in the fight against cross-border crime through the creation of an area of freedom, security and justice within Europe. The extension of the free movement concept to judicial decisions led to the idea of mutual recognition; if one EU country makes a decision (for example that a person should be extradited) then that decision will be respected and applied by courts and authorities across the EU. Unfortunately, the rights of citizens were for a long time largely ignored. Violations of EU citizens fair trial rights are increasing 5. All EU Member States are signatories to the European Convention on Human Rights (ECHR) which provides the formal legal basis for defence rights in Europe. Unfortunately, the fact that all EU States are subject to the standards set out in the ECHR has not proved to be an effective means of ensuring that signatories comply with the Convention s standards, particularly in the area of defence rights. In 2011 Article 5 (right to liberty) and Article 6 (right to a fair trial) cases made up nearly half of the total number of violations found by the European Court of Human Rights (ECtHR). 2 1 The Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and certain related acts, Amsterdam 2 October 1997 2 European Court of Human Rights statistics 2011: Article 5 is 13.73% and Article 6 is 33.72%. 1
6. These numbers are only the tip of the iceberg. A case cannot be brought before the Strasbourg Court unless all domestic remedies have been exhausted, meaning that many people are unable to afford to take cases involving violations of their rights to the ECtHR. Lengthy and stressful national proceedings may also render people unwilling to continue fighting for their rights. The current back log of 150,000 cases means that even those who do go to Strasbourg may have to wait years to have their case heard. 3 When a violation is found, the amount of time that has passed since it took place makes providing an effective remedy all but impossible. The damage was done at the time the person was denied access to a lawyer, or held in pre-trial detention for an excessive amount of time; the clock cannot be turned back to undo the effect of the experience on suspects and their families. The potential of a claim at Gerry Gallant Gerry Gallant, a Dutch national, was arrested in the Netherlands in June 2010 under a European Arrest Warrant and extradited to Italy. At his trial, he could not understand the proceedings as there was no interpreter. His lawyer did not speak Dutch or English and could not communicate with him. Gerry received no written information about his case and no copy of the trial judgment (in Dutch or Italian), despite being entitled to this under Italian law. It was only six months into his sentence, when he eventually managed to contact the Dutch Ministry of Foreign Affairs, that he discovered he had been sentenced to eight years in jail. Gerry now wishes to be transferred to a jail in the Netherlands. However, as he has never received written confirmation of his prison sentence from the Italian authorities, he cannot apply for a transfer and remains trapped in Italy. the ECtHR, therefore, is not sufficient to ensure that suspects are treated equally wherever they are arrested in the EU. 7. The EU has a vital role to play in ensuring that defence rights are protected in Europe. EU laws provide an opportunity to flesh out the guidance offered by the ECtHR and to provide clear rules for all EU countries about how to give effect in practice to the fundamental rights guaranteed by the ECHR. They make clearly defined fair trial standards directly enforceable in courts across Europe. This helps ensure that the laws to protect rights adopted pursuant to the Roadmap are uniform across the EU, leading to a fairer criminal justice system and ensuring that people do not lose their rights as they move from one EU country to another. Importance of improving EU citizens defence rights the procedural rights Roadmap 8. The Commission s work in progressing the Procedural Rights Roadmap 4 (the Roadmap) has been extremely important in the last two years and FTI was delighted that the Commission recognised the need to further improve the protection of persons suspected and accused in criminal proceedings in the EU Citizenship Report 2010. 3 E.g. http://www.soros.org/sites/default/files/echr-reform-qanda-4-3-12-2.pdf 4 Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, (2009/C 295/01), 30 November 2009 2
9. Full implementation of the Roadmap would be a huge step towards an EU where every Member State offers sufficient fundamental rights protections for suspects and defendants. This will only be the case in practice, however, if the measures are properly implemented into national law, and sufficient training of judges, prosecutors and defence practitioners is undertaken to ensure that the new laws are applied effectively in all Member States. If citizens are not aware of their rights then they will not know to use and enforce them and the new laws will make little difference in practice. 10. It is important that the momentum built up in the early years of the Roadmap is maintained. It is to be hoped that a strong directive will be agreed guaranteeing the right to access a lawyer and to communicate on arrest, which gives suspects access to legal representation at the earliest stages in criminal proceedings. This is essential to ensure that people can effectively prepare a defence and receive a fair trial. 11. We look forward to working with the Commission to develop strong proposals for the final two Roadmap measures, on the right to legal aid and to introduce special safeguards for vulnerable suspects. These should be a priority for the Commission in its plans for citizenship in 2013. Unless there is continued progress on the Roadmap, then people will continue to be disadvantaged in criminal proceedings in the EU because they cannot afford a lawyer, or because they are particularly vulnerable due to a physical or mental disability or their young age. Michael Turner and Jason McGoldrick Hungarian authorities sought the extradition of Michael Turner and Jason McGoldrick from the UK, following the failure of their business venture in Budapest. Michael was extradited to Hungary under an EAW on 2 November 2009 and was held in prison for four months, during which time he was interviewed only once by police. He was released from jail on 26 February 2010 and was allowed to return to the UK, but was requested to return for further police interviews in April. Michael s father, Mark Turner, has described how the pair were held in separate parts of a former KGB prison and were not allowed to contact family members or consular officials. Michael had to share a cell with three other prisoners and was only allowed out of the cell for one hour a day. Two weeks into his detention Michael was wearing the same clothes in which he had been arrested and had not been allowed to have a shower or clean his teeth. Prison officers refused to allow him to open parcels from his family containing basic items like toothpaste. Hungary s investigation is still ongoing with charges neither brought nor dropped against Michael. It is hoped that the investigation will be closed and that Michael will be able to start to re-build his life. 3
Discrimination against non-national EU citizens in pre-trial detention and the European Supervision Order 12. Pre-trial detention offers important safeguards to ensure justice is served, evidence and witnesses are protected, and suspects do not escape prosecution. Yet depriving people of their liberty in the period before trial is supposed to be an exceptional measure, only to be used where absolutely necessary. Sadly, this is not the case in practice. 13. Inappropriate and excessive pre-trial detention clearly impacts on the right to liberty and the right to be presumed innocent unless and until proven guilty. It also has a detrimental effect on a suspect s family members, particularly when detention is overseas, as visiting will be more costly and difficult. There is a wider socioeconomic cost as lengthy pre-trial detention will usually result in the suspect losing his or her job, which can have a severe financial impact on other family members. These knock-on effects further increase the costs of pretrial detention to the State. Andrew Symeou Andrew, then a 20-year-old student from the UK, was extradited to Greece under an EAW in July 2009 on manslaughter charges. Following his surrender Andrew was denied release pending trial by a Greek court on the basis that he had not shown sufficient remorse for committing the crime which he was accused of a clear violation of the presumption of innocence. Another reason Andrew was denied release pending trial was that he was a non-national and therefore was assumed to represent a flight risk. This was despite the fact that Andrew had met all his supervision conditions in the UK and his father had arranged to hire a flat for him to stay at during the run-up to the trial. Andrew spent a harrowing 11 months on remand in Greece. 14. A large proportion of the EU s pre-trial prison population is made up of nonnational defendants, many of whom are EU citizens. 5 Non-nationals are often at a disadvantage in obtaining release pending trial because they are seen as a greater flight risk than national defendants. This risk is often identified by courts despite factors indicating that the person will not abscond, such as stable employment and long-time residence in the country. The result is that non-national defendants are regularly denied release pending trial simply because they are foreigners. This is at odds with the idea that EU citizens have the same rights at all times, wherever they are in the EU. The prison conditions Andrew has described included: filthy and overcrowded cells (with up to six people in a single cell); sharing cells with prisoners convicted of rape and murder; violence among prisoners (one was beaten to death over a drug debt while Andrew was there); and violent rioting. The shower room floor was covered in excrement, there were cockroaches in the cells, fleas in the bedding, and the prison was infested with vermin. Following numerous delays due to prosecution errors, Andrew was finally released pending trial in June 2010. His four-year ordeal finally came to an end on 17 June 2011, when he was acquitted by a Greek court. 5 26%, source: 2009 Council of Europe Annual Penal Statistics SPACE I, please note that this does not include figures for Austria, Finland, France, Greece, Malta, Portugal and Sweden 4
15. The problems non-nationals face when applying for release pending trial may be eased by the introduction of the European Supervision Order 6 (ESO), which must be implemented by all Member States by 1 December 2012. Effective implementation of the ESO would help ensure the elimination of discrimination against non-nationals in decisions on release pending trial by allowing courts to rely on the authorities of other Member States to supervise the defendant and thus removing one of the main obstacles to temporary release of non-nationals. It would also save significant resources. Member States spend millions each year imprisoning foreign pre-trial detainees. However, The European Commission has estimated that up to 80% of the EU nationals in pre-trial detention in a Member State could be transferred to their home States prior to trial. 16. To be effective the ESO system must be seen by judges across the EU as a viable alternative to pre-trial detention. Mutual trust is central to the ESO s successful operation. However, there is a danger that the instrument will not be used consistently across all Member States, but only between those countries where mutual trust already exists. There is a further risk that the ESO will only be used to return people to Member States that have more advanced supervision mechanisms and better-resourced police forces. Meanwhile, accused persons from countries deemed (by prosecuting States) to be less able to enforce supervision measures will remain in pre-trial detention. This would lead to inequality in the way defendants benefit from the ESO. 17. Action is needed during 2013 to ensure the proper functioning of the ESO and to help end the discriminatory treatment of non-national EU citizens in pre-trial detention. Action is needed in Member States to: Provide training for judges, prosecutors and lawyers on how the ESO can be used; Improve domestic mechanisms for monitoring conditional release if currently inadequate; and Facilitate easy access to details about other countries arrangements for monitoring supervision measures so that judges can make informed decisions at review hearings about whether, and in what terms, to issue an ESO. Conclusion 18. We are still a long way from an EU where all Member States offer sufficient fundamental rights protections for suspects and defendants. FTI sees hundreds of cases each year where EU citizens are denied access to an interpreter or to legal advice or have not been given information about their rights. These rights are particularly important when the country is not your own. There is more work to be done, to ensure that those laws that are passed are effectively implemented and enforced by judges, prosecutors and lawyers. We hope that the Commission will continue to work with the Parliament and Council to agree strong directives for the remaining measures to strengthen the rights of the thousands of people who are arrested in the EU each year. 6 Framework Decision 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, 2009/829/JHA, 23 October 2009 5
19. We recognise that ensuring effective defence rights in all cases has cost implications and that, in a time of economic crisis, all expenditure must be fully justified. However, effective defence rights are not a luxury we can cast aside when times are tough. It is a cornerstone of EU law that everyone is treated fairly in criminal investigations and proceedings. The right to a fair trial is universal, and should be something on which every EU citizen can rely. 20. 2013 is the European year of the citizen. Ensuring that citizens have effective and enforceable rights in the case of their arrest should be at the heart of EU policy. Much work has been done but there is more to do, and we look forward to working with all of the European institutions to continue to move towards an EU where fair trial rights are not just a theory but a reality for all. 6