13th Apr 2021


EU starting to wake up to lacking defence rights

How do 27 countries, all with their own distinct legal systems, juggle the competing demands of combating cross-border crime while safeguarding the free movement and other fundamental rights of those on their territory? This is the question the EU has been attempting to answer for the last ten years.

Unfortunately the solution – "mutual recognition" of each other's judicial decisions - has left defence rights out of the picture. This is now starting to change.

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  • Mutual recognition of court rulings should not be based on blind faith (Photo: wikiepdia)

Essentially mutual recognition means that if one EU country makes a decision, for example, that a person must be extradited to face a criminal trial or serve a sentence, or that evidence or assets should be frozen, that decision will be respected and applied throughout the EU, no questions asked. The underlying idea is this: we may do things differently from one another, but we can trust our European neighbours to do justice.

This philosophy underlies Europe's controversial fast-track extradition system (the European arrest warrant). Such a philosophy is based on mutual trust. Unfortunately, the foundations for that trust are not yet in place.

Standards of justice vary greatly from one EU country to another and fundamental rights do not receive the same respect in every Member State. Unfortunately, this reality has largely been ignored in the push for ever greater mutual recognition and cross-border cooperation. Defence rights have been sidelined, not strengthened, in the name of greater cooperation.

However, new legislation is being brought in by the EU to give basic defence rights far more priority in the criminal justice agenda.

In June 2010, the first in a long-awaited series of defence laws was passed by MEPs. A new directive entitles everyone facing charges in any EU country to prompt access to an interpreter and to translation of documents when they need it.

Now the European Commission has proposed another new law, a directive guaranteeing that everyone arrested in an EU country gets information about their basic legal rights and the charges against them, in simple language and as soon as possible. The proposal was published on 20 July and will now be examined by member states and debated in the European and national parliaments. Other measures will then be introduced covering, for example, legal advice, legal aid, consular access, and pre-trial detention.

This latest proposal envisages suspects getting a "Letter of Rights" at the early investigative stage of proceedings: the content will depend on local law but might include the right of access to a lawyer, an interpreter, and information about the reason for the charge. The proposal also says suspects and defendants must have proper access to the case file once the investigation is complete.

Blind faith is not enough

Fair Trials International has welcomed this measure and the earlier directive on interpreting and translation rights.

Our cases demonstrate all too clearly how urgently they are needed. Take the case of Teresa Daniels. Teresa was returning to her home in Tenerife following a holiday, when Spanish security officials found cocaine in the bags of the acquaintance she had been travelling with. Although there were no drugs on Teresa or in her luggage she was arrested and charged with drug offences along with this companion.

Teresa did not realise, however, that she was facing this charge, thinking only her companion had been charged. Very little information was provided to her and important documents were not translated. Throughout the trial Teresa believed that she was there as a witness for the prosecution against her acquaintance, and was completely unaware as she answered questions in court that she was actually on trial herself.

In finding her guilty, the court relied on a poor translation of entries in her personal diary. In this diary she had written about looking forward to receiving some money. This was actually a reference to compensation she was about to be given for injuries she had received in a car accident. If a good translation – and a court interpreter – had been provided to Teresa, she could well have been acquitted.

But Teresa did not know, even at the trial itself, that she was entitled to request this assistance. Following her conviction, she spent four years in jail before being pardoned by Spain in early 2009.

The recent case of Garry Mann also shows how crucial it is to have access to information about rights and charges. Garry was arrested, tried and convicted, all in the space of 48 hours, following disturbances at the Euro 2004 football championships in Portugal.

Garry has always maintained he was elsewhere with friends during the disturbances, but he had no chance to call them as witnesses. He was unaware that Portuguese law provided for a 1 month "stay" of proceedings to prepare a defence. Nor did Garry know what offence he was charged with until he looked over the shoulder of the court interpreter, 20 minutes before the end of the trial, and saw the words "leading a riot".

Despite a British judge labeling his original trial "unfair" there were no grounds to refuse extradition. Garry was extradited in May 2010 and is currently serving a two year prison sentence in a Portuguese jail.

These cases are stark reminders of how far we are from an EU where the right to a fair trial can be relied on by anyone, no matter where they are in Europe. These new directives (and those in the pipeline on access to legal advice, legal aid, pre-trial detention review and other basic rights) signal a realization by Europe that cross-border police and judicial cooperation must be accompanied by stronger basic defence rights. This means building a sound basis for trusting that all European countries can deliver a fair trial – not just having blind faith that they will. Teresa and Garry will tell you that blind faith is not enough.

Catherine Heard and Daniel Mansell are policy officers with Fair Trials International.


The views expressed in this opinion piece are the author's, not those of EUobserver.

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