What “mutual recognition” really entails: analysis of the Prime Minister's Mansion House Brexit policy speech

Professor Stephen Weatherill, Somerville College, University of Oxford

Theresa May’s speech at Mansion House in London on 2 March 2018 has attracted a torrent of comment. It has been greeted as, on the one hand, shallow and unrealistic and, on the other, as the most thoughtful contribution to the debate offered so far by a member of this government. In truth both descriptions are accurate. I want here to focus on Mrs May’s aspiration to promote “mutual recognition” as a means to manage the future economic partnership she envisages between the EU and the UK.

In her portrayal of the treatment of goods after Brexit, Mrs May insists that “both the UK and the EU have a strong commercial interest in preserving integrated supply chains that have built up over forty years”, and she envisages “that trade at the UK-EU border should be as frictionless as possible”. Echoing David Davis’s speech in Vienna on 20 February she wants to “ensure that, as now, products only need to undergo one series of approvals, in one country, to show that they meet the required regulatory standards”. How to achieve these aims and visions? Mrs May declares that “we will need a comprehensive system of mutual recognition”.

Much of what passes for “negotiation” on the UK side since the despatch of the Article 50 letter of withdrawal in March 2017 has involved a desire to retain the benefits of EU membership while shrugging off the status and responsibilities of membership. But when Mrs May appeals for “a comprehensive system of mutual recognition” she is going still further. She is not asking for something that applies within the EU. She is asking for something that even EU Member States do not expect of each other. A “comprehensive system of mutual recognition” is not found within the EU. Mrs May is asking that the UK be treated better than a Member State of the EU.

Mutual recognition in primary EU law is most prominently found in the area of free movement of goods, persons and services, but it is not absolute mutual recognition. Instead it is conditional or non-absolute mutual recognition. That means that where something is good enough for the market of one Member State, it is to be treated as good enough for the market of all the other Member States – unless the target (or host) State can show a good reason why it should be entitled to rely on its stricter standards to exclude something that is acceptable elsewhere in the EU. The reservation unless is structurally crucial in the law of the EU’s internal market. A State is not inevitably obliged to open up its market to a product or service which does not conform with local laws. It may appeal to its tougher standards of health protection, its more assiduous concern for consumer protection or its particular fastidiousness in the area of environmental protection – and it will need to be judged, ultimately by a Court, whether the State has a strong enough justification of this type to place obstructions in the way of the impulse towards market integration. National rules, practices and standards that impede inter-state trade are in this way routinely put to the test.

Protectionism and reliance on anachronistic rules that have no place in an integrated European market will fail the test and such objectionable rules must then be disapplied. But there is room for sincerely and well-targeted measures to pass the test, and to remain in force as non-tariff barriers to trade which serve an interest that is shown to rank higher than trade liberalisation. This is plain from the Treaty on the Functioning of the European Union, which does not impose an unconditional rule of freed cross-border trade, and it is embedded too in the Court’s famous elaboration of the basic Treaty norms governing free movement, its Cassis de Dijon principle, which equally imposes only a conditional or non-absolute requirement of mutual recognition in the EU internal market.

So primary EU law imposes something less than the “comprehensive system of mutual recognition” to which Mrs May aspires. If she imagines that the EU will agree automatically to admit UK goods and services into its internal market simply because those goods and services comply with UK law, then she is imagining a model which is not even available within the EU. And it is utterly unrealistic to imagine it will be on offer to a third country.

Mutual recognition also deserves assessment at the level of EU secondary legislation – the vast number of measures, most of them Directives but some of them Regulations, which provide the legislative platform on which is built the EU’s internal market. The EU’s Treaty rules on free movement combine with the legislative acquis on harmonisation within the internal market and on the regulation of particular sectors to produce a dense and intricate network of rules which reflect the liberalisation of markets within the EU but also the regulation of those markets by the EU.

But there is no “comprehensive system of mutual recognition” here – at least not in the shallow description offered by Mrs May. The point of these rules is to establish EU rules, which are then implemented at national level. This generates a common system apt to release the advantages of an integrated trading space that transcends the limits of national political boundaries. On this model Member States regulate in order to achieve the same agreed common purposes – they do not show mutual recognition of each other’s different choices and techniques. Across the whole wide sweep of EU rule-making there is a common core of agreed EU standards, which all participants must meet. Moreover, the application of those rules is secured within tightly defined institutional and constitutional constraints. The EU is not simply a system of rules, it is a system too that involves the oversight of the Commission, the place of sector-specific agencies, the authority of the Court of Justice and the everyday involvement of national courts and administrative agencies. Rules – but also supervision, administrative co-operation, interpretation and enforcement too.

There is, of course, detailed sectoral variation, both in the particular intensity and shape of the rules adopted by the EU and in the scope permitted for State action even in areas where the EU has intervened. But the general picture is plain. Whether one is looking at the authorisation of medicines or the prohibition of unfair common commercial practices, the regulation of professional qualifications or the administration of the European Arrest Warrant, working time or environmental impact assessment, the model is visibly similar – there is a common foundation of EU rules on which all the Member States rely, and this is supported by a dense institutional network. This is not unconditional mutual recognition of difference. It is managed mutual recognition of carefully circumscribed difference.

It is remote from Mrs May’s “comprehensive system of mutual recognition”.

To be fair, awareness of this background is not wholly absent from Mrs May’s speech. She speaks of commitments that UK and EU regulatory standards would remain “substantially similar in the future”; she adds that the UK might “remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”. This jars with the frustratingly glib slogan earlier in the speech according to which Mrs May claims that “the referendum … was a vote to take control of our borders, laws and money”, but it might be generously interpreted as an admission that taking back control will require a more sophisticated appreciation of the virtue of multilateral action than the remorselessly unilateral tone of much of the case for Brexit has been hitherto willing to concede. And indeed the speech was reported, perhaps with the impetus of a little behind-the-scenes spin, as mapping a route to a more realistic relationship with the EU than some go-it-alone Brexiters have urged – “May tells Eurospectics to face facts”, proclaimed the lead story on the front page of the Financial Times the day after the speech.

More realistic, perhaps – but the problem with the speech was that it was not realistic enough.

In part this is because of the persisting contagion of cherry-picking, but the deeper problem of a speech which includes an aspiration to a “comprehensive system of mutual recognition” is that this completely neglects the very nature of the EU. The EU is a rules-plus system. It is based on common rules but also common institutions and common constitutional principles. It is far more intricate than Mrs May allows.

Mrs May accepts “the need for binding commitments – for example, we may choose to commit some areas of our regulations like state aid and competition to remaining in step with the EU’s”. Elsewhere she is softer in her promises. The UK will need to make a “strong commitment” that its regulatory standards will remain as high as the EU’s. (Here too the media was evidently briefed on the gap between “binding” and “strong” commitments). In the matter of workers’ rights or the environment, “the EU should be confident that we will not engage in a race to the bottom in the standards and protections we set”.

But this is not good enough to generate the trust that constitutes the necessary underpinning of frictionless trade in the internal market! The EU’s model of mutual recognition demands much more, both in the binding character of the rules and in the supporting institutional and constitutional architecture. Failure to accept this necessary starting-point leads Mrs May to embrace unrealistic expectations. On services, she says that “given that UK qualifications are already recognised across the EU and vice versa – it would make sense to continue to recognise each other’s qualifications in the future.” In the matter of transfrontier broadcasting she aspires to “creative options … including mutual recognition”. On financial services “our goal should be to establish the ability to access each other’s markets, based on the UK and EU maintaining the same regulatory outcomes over time”. But the EU’s approach to mutual recognition goes far deeper than mere possession of the same rules.

Everything that Mrs May says – about agencies and regulators, about data protection and energy co-operation, about Euratom and transport, about judicial co-operation and science, and so on - assumes a UK that enjoys a high degree of independence from the EU’s rules and especially from its institutions, yet is able to dip in here and there as an associate member according to specially crafted arrangements. But although EU is built on rules and it is built on trust, it is also built on institutional and constitutional frameworks that underpin those rules and verify that trust is warranted. This is what the Commission has lately taken to describing as the EU’s “ecosystem”.

This is what the EU is determined to defend; this is what the UK has chosen to quit. Mrs May’s speech does not come close to recognising, still less to explaining, the magnitude of the changes that are looming in consequence. Her speech asserts that the UK “will not accept the rights of Canada and the obligations of Norway”, the shabby politician’s trick of rejecting a suggestion that absolutely no one has advanced, but she is perilously close to asking for the obligations of Canada and the rights of Norway.

One of the relatively few concrete observations in Mrs May’s speech which looks beyond mutual recognition of rules also to acknowledge the institutional consequences concerns financial services. She notes “the highly regulated nature of financial services, and our shared desire to manage financial stability risks” and so accepts that “we would need a collaborative, objective framework that is reciprocal, mutually agreed, and permanent and therefore reliable for businesses.” Quite so! And this invites the exasperated retort – but that is exactly what you have right now! How illuminating that when, directly after the speech, Mrs May was asked by a journalist whether Brexit is “worth it”, she laughed nervously and said “we won’t think again on Brexit”, and studiously avoided the question. “A collaborative, objective framework that is reciprocal, mutually agreed, and permanent and therefore reliable for businesses” is what the EU delivers. Appeal to the language of “mutual recognition” conceals the density and the intensity of the obligations that are required to generate trade integration on the truly deep and special scale that the EU’s internal market has achieved. Mrs May has belatedly embarked on a journey which accepts that leaving the EU entails difficult choices and unavoidable harm, but she has a long distance to travel yet to come fully to terms with the consequences.

Barnard & Peers: chapter 27

Art credit: facto-facts

Double Jeopardy and EU Law: Court clarifications and Commission reports

Steve Peers

It’s just like buses. You wait almost four years for a CJEU judgment on the Schengen double jeopardy rules, and then two judgments come along almost at once. What’s more, the Commission has also just released two reports on the application of related EU legislation. The judgments have provided a number of useful clarifications of the rules, which the reports paint the familiar disappointing story of tardy implementation of Member States’ legal obligations.

Background

Double jeopardy (or ne bis in idem) in criminal cases, ie trying the same person for the same crime more than once, is banned by many national constitutions and by the Seventh Protocol to the European Convention on Human Rights (although a few Member States have not ratified this Protocol).  However, these rules generally only apply the rule to trials within the same State.

EU law goes further than this, by establishing a cross-border rule. Article 54 of the Schengen Convention, which applies in all Member States except Ireland, as well as the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein), states that ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Article 55 of the Convention allows for a limited number of exceptions to this rule, and Article 56 provides that if there is a second prosecution, any period of deprivation of liberty arising from the same acts in the first Member State must be deducted from any sentence imposed in the second Member State. Article 57 sets up a process of consultation between Member States to implement the rules, while Article 58 allows Member States to apply more generous rules between themselves.

Despite the current limits on the CJEU’s jurisdiction over EU criminal law measures adopted before the Treaty of Lisbon, there have been a considerable number of judgments on these rules over the years, since about two-thirds of Member States have opted into the Court’s jurisdiction. We might expect more cases being sent to the CJEU on these issues after December 1 this year, when those limits will be removed. Cases could even be sent from the UK courts, since the UK intends to opt back in to (among other things) these provisions of the Schengen Convention when it opts out of a lot of pre-Lisbon EU criminal law measures on that date.

EU law does not generally regulate the application of the double jeopardy principle within the same Member State, although it might be relevant where the proceedings concern a substantive criminal law issue linked to EU law (see, for instance, the Fransson judgment).

While national, international and EU law on substantive criminal law often provides for extraterritorial jurisdiction, an investigation into the same person for the same acts in multiple Member States is in prlnciple a waste of time and money, since the person concerned cannot usually be tried twice in both Member States. So back in 2009, the EU adopted a Framework Decision on conflicts of jurisdiction, setting up a process of information and consultation between national authorities if there was an indication that there multiple proceedings concerning the same acts committed by the same person.

On the other hand, if the same person has committed different crimes, national criminal law systems usually impose some form of added penalty, in the form (for instance) of harsher bail conditions or a longer sentence in the event of a conviction. It follows from the cross-border nature of EU Justice and Home Affairs cooperation that this principle should apply even if a prior conviction was handed down by another Member State. So another Framework Decision, adopted in 2008, sets out the details of how this rule applies.

The judgments

The first recent judgment, in Spasic, raised two points. First of all, is the rule limiting the double jeopardy rule to cases where the penalty (if there is one) has been enforced, can no longer be enforced or is being enforced (the ‘execution condition’), valid in light of the EU Charter of Rights? Secondly, how does that condition apply where a criminal conviction has resulted in both a custodial penalty and a fine, where the fine has been paid but the custodial penalty has not been served?

These questions were relevant in this case because Mr. Spasic had paid a fine of 800 euros imposed as a sentence by an Italian court for passing counterfeit currency, but had not served the one-year sentence which was imposed for the same acts. So could he still be prosecuted in Germany for them, given that the double jeopardy right in Article 50 of the Charter does not mention any execution condition?

In the Court’s view, the execution condition was valid in light of Article 52(1) of the Charter, which sets out the rules for limiting Charter rights. Limitations must be provided for by law, respect the essence of the rights and freedoms and be necessary and proportionate in pursuit of an objective of general interest.

Here, the limitation was clearly provided for by (EU) law. It respected the essence of the right, since it only limited the double jeopardy rule where the person concerned had escaped punishment. It aimed at securing objectives of general interest, since the Treaty rules on JHA objectives implicitly aimed to avoid situations of impunity. 

As for proportionality, while there were other relevant EU measures, the Framework Decision on conflicts of jurisdiction did not ensure that the person would be punished, and the Framework Decision on transfer of prisoners was subject to the conditions of consent of the person concerned and of the sentencing State. However, the CJEU accepted that it would not be proportionate to bring a second set of proceedings in Germany, if Italy wanted to enforce its sentence (Mr. Spasic had not served that sentence simply because he was imprisoned in Austria for different offences at the time).

On the second point, the Court ruled that custodial and non-custodial penalties were severable for the purpose of applying the execution condition. So paying an 800-euro fine did not equate to partial satisfaction of a one-year jail term, and so did not exempt the person concerned from being prosecuted in a second Member State.

The second case, M, concerned allegations of child abuse against an Italian man living in Belgium. The Belgian authorities investigated these, but a pre-trial chamber gave a ‘non-lieu’ ruling, meaning that the case could not proceed to trial due to insufficient evidence. This ruling was eventually upheld on appeal. In the meantime, the Italian courts had begun their own investigation, and wanted to know if the Belgian ruling was a ‘final judgment’ which prevented them from proceeding to trial.

In the Court’s view, it was. A final judgment could include a pre-trial measure (like the plea bargain accepted by prosecutors in the earlier Gozutok and Brugge case), as long as it finally determined the case on the merits according to national law (applying the test in Turansky). That was the case here, once the appeal was decided. Referring to the Zolukhtunin judgment of the European Court of Human Rights, the CJEU ruled that a possibility of an extraordinary remedy did not preclude a trial from being final. Nor did the possibility, referred to in the ECHR Protocol and Belgian law, of bringing a fresh prosecution, as a derogation from the double jeopardy rule, in the event of new or newly discovered evidence. The Court confirmed that in that case, only the first Member State, not the second, could bring a fresh prosecution.

The reports

For the Framework Decision on conflicts of jurisdiction, the Commission report notes first of all that only about half of the Member States have implemented it (the deadline was June 2012). This makes sense for the UK, since it does not seek to opt back in to this measure. It should be noted that infringement proceedings against Member States will also be possible when the 1 December deadline soon expires.

Overall, while the Commission refers to this measure as a ‘first step’, it states that it cannot draw ‘general conclusions’ about the quality of implementation, because few Member States have practical experience in its implementation. But it does note that some Member States have not applied the key rules on the information to be transferred between authorities. Most Member States permit parallel investigations to take place, even after the consultation process, although they are a waste of time and money. Only Croatia has an express rule (corresponding to the M judgment) that a final judgment in one Member State must terminate a pending prosecution in another.

As for the report on the Framework Decision on the consequences of convictions, six Member States have still not applied it (the deadline was back in 2010). This time, the UK, which seeks to opt back in to this measure, has applied it.

The Commission is rightly concerned that Member States limit the mutual recognition obligation to cases of a final conviction, for otherwise they would be infringing the presumption of innocence. Overall, the Commission expresses dissatisfaction mainly with a group of nine Member States which have claimed to implement the Framework Decision without giving further detail. Obviously it would be wise for those Member States to provide that further detail over the next six months, before infringement actions can be launched. The Commission does not assess the practical application of the European Criminal Records Information system (ECRIS), established by separate EU legislation, which is the main way of ensuring that the relevant information is transferred between Member States in the first place.

Comments

The Court’s ruling that the ‘execution condition’ in the Schengen rules was valid is convincing in light of the great public interest in preventing impunity for those convicted of criminal offences. For the same reasons the Court was right to reject the argument that payment of an 800-euro fine was equivalent to serving a year in jail. That would have amounted to de facto impunity.

Crucially, the Court rightly applied the principle of proportionality to rule that on the facts of the case, a second prosecution could nonetheless not take place if it was still possible in practice to serve the initial sentence instead. This rule ensures that the person concerned does not end up serving two separate sentences for the same crime (recalling that any time served in one Member State would have to be deducted from the time served in another one), and could prevent the cost and waste of time of a second prosecution if it proves to be unnecessary after all.

It should be noted that the Court did not rule here on whether the national derogations permitted by Article 55 of the Schengen Convention are valid. Unlike the execution condition, these rules do not aim to avoid impunity, but rather allow a second prosecution to be brought where: the act took place on a Member State’s territory; the act concerned national security or ‘equally essential’ interests; or the person concerned was an official of the State concerned. In all these cases, justice would best be served by giving the Member State concerned the first opportunity to bring a prosecution, and the Framework Decision on conflicts of jurisdiction should facilitate that. But it may be questioned whether those interests are strong enough to justify the power to bring a second prosecution (although again it must be recognised that any time served in the first Member State must be deducted from any sentence in the second).  

As for the M case, it answers a number of important issues. It is now clear that the double jeopardy rule is triggered only on disposition of a final appeal in the first Member State, and (implicitly) that the rule not only prevents the start of proceedings in a second Member State, but also terminates proceedings that are already underway. Again, the relevance of the Framework Decision on conflicts of jurisdiction becomes clear: whichever of the Member States concerned lost the ‘race’ to a final judgment (stereotypically, this was Italy) would end up having wasted its time and money.

The clarification of what happens in the event of new evidence is also important. It should be noted that, as the Advocate-General pointed out, if new evidence surfaces in Italy (or any other Member State), EU rules can facilitate its transfer to Belgium for the authorities to consider it. Also, the Court makes a general statement that only a ruling on the ‘merits’ counts as a final judgment. This sits oddly with its judgment in Gasparini, where it ruled that a proceeding which was time-barred in one Member State counted as a final judgment, so that case must be seen now as an anomaly.

More broadly, the two new judgments go a long way to reconcile the Schengen double jeopardy rules with human rights law. Oddly, the Court had never before mentioned Article 50 of the Charter in the context of the Schengen rules, until the Spasic case forced it to. Afterward, in the M case, the Court now refers to interpreting the Schengen rules in light of the Charter. As for the ECHR, the CJEU positively dismissed its relevance back in the Van Esbroeck judgment, but since the Strasbourg Court aligned itself with the CJEU's interpretation of the principle in Zolukhtunin, the CJEU is now happy to rely upon the other Court's rulings as a source of interpretation.   

What about the EU legislation? The Court itself, in the Spasic case, said in effect that the Framework Decision on conflicts of jurisdiction was too weak to affect its interpretation of the double jeopardy rules, since it did not ensure that the person concerned would be punished (although actually, that isn’t its main purpose). The M case shows, as noted above, how an early decision on conflicts of jurisdiction is necessary to avoid wasting time and money, and to reduce complications for suspects, particularly given that (in the view of the Belgian courts) there was insufficient evidence to prosecute in that case.

Overall, there seems to be plenty of reason to fear that, as I predicted some time ago, the Framework Decision on conflicts of jurisdiction has done nothing much to avoid multiple prosecutions, in particular because it lacks an obligation in principle to centralise prosecutions, never mind a list of criteria to apply to determine where the prosecution should take place. It has obviously had no effect in the half of Member States which have not bothered to transpose it at all. Since the Commission regards this measure as a ‘first step’, it should have considered measures to amend it to this end at the earliest opportunity.

As for the Framework Decision on the consequences of prior convictions, the Commission assesses its implementation on paper, but not its implementation on the ground. The real question is how it works in conjunction with the ECRIS system, and in particular whether there are any problems as regards the classification of convictions rendered in other Member States.

These reports are released as justice ministries begin their last lazy summer before the prospect of infringement proceedings to make them to live up to their legal obligations (as we have seen previously on this blog, these failures extend also to legislation on prisoners and probation, and to hate crime law too). Time will soon tell whether the Commission will step up to the plate and assume its role as the guardian of EU law in this field.

Barnard & Peers: chapter 9, chapter 25

The European Investigation Order: A new approach to mutual recognition in criminal matters

Emilio De Capitani and Steve Peers

  

The adoption of Directive 2014/41/EU on the European Investigation Order (EIO) is a milestone for judicial cooperation in criminal matters in the European Union notably after the entry into force of the Lisbon Treaty and of the EU Charter of Fundamental Rights. This post focusses in turn on the broader legal context of the new Directive, its territorial scope in light of various opt-outs, and its important provisions on the relationship between human rights and mutual recognition.

A comprehensive single instrument

As from 22 May 2017, this Directive replaces most of the existing laws in a key area of judicial cooperation – the transfer of evidence between Member States in criminal cases – by a single new instrument which will make cross-border investigations faster and more efficient.

That current patchwork of rules comprises:

-          the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional protocols);

-          parts of the Schengen Convention;

-          the 2000 EU Convention on Mutual assistance in criminal matters (and its Protocol);

-          the 2008 Framework Decision on the European evidence warrant; and

-          the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence (as regards freezing of evidence).

Unlike the European Evidence Warrant, which most Member States thought was useless and have not bothered to implement, the new Directive will cover almost all investigative measures  such as interviewing witnesses, obtaining of information or evidence already in the possession of the executing authority, and (with additional safeguards) interception of telecommunications, and information on and monitoring of bank accounts. The Directive will not apply to Schengen cross-border surveillance by police officers under the Schengen Convention, or to the setting up of a joint investigation team and the gathering of evidence within such a team which. According to the legislator, these issues “require specific rules which are better dealt with separately”.

A small part of the previous Conventions will remain in force because they regulate issues outside the scope of investigations, such as compensation for wrongful conviction. A handbook for practitioners will clarify this issue in future.

Territorial scope

The Directive will apply to all the EU Member States with the exception of Denmark (because of the general exclusion of this country from Justice and Home Affairs measures– see Protocol 22 attached to the Treaties) and of Ireland which, until now, has not “opted in” as it has the faculty to do according to Protocol 21 attached to the Treaties. Surprisingly the UK “opted in” and so took part in the vote even if by …abstaining. (Note: by so doing it also avoided national parliamentary scrutiny).

Due to the position of Ireland and Denmark, the former Framework Decision on the European Evidence Warrant has not been repealed, so will “survive”, but only for the relations between Ireland and Denmark and the other EU Member States. Probably the legislator wanted to still the door open to Ireland for a late “opt-in” (still possible any time after the adoption of an EU JHA act – see Article 4 of Protocol 21).

This tricky (and hopefully transitional) legal situation has obliged the legislator to use in Article 34 of the Directive a generic and flexible reference to “…the Member States bound by this Directive” (a formula already used for the “Human Trafficking” Directive, as well as other measures such as EU asylum legislation).

These are legal acrobatics which do not strengthen legal certainty and have already triggered some public statements by several Member States which very politely urge the Commission and the Presidency to …”consider possibilities to ensure legal clarity on the repealing of the Framework Decision [on the European Evidence Warrant] for all Member States.”  

From legal assistance to mutual recognition

The huge advance of the new text is that it makes the transition from the mutual legal assistance mechanisms, where the requested State has a wide discretion to comply with the request of another State, with a mutual recognition mechanism where each State must in principle recognise and execute a request coming from another Member State. By choosing the word “order” and by referring to “issuing” and “executing” States, in place of “requesting” and “requested” States, the legislator clearly indicates how the system has changed.

In the same perspective the execution of an EIO should not be refused on grounds other than those stated in Article 11 of the Directive (such as human rights, territoriality, national security and double jeopardy), although the executing authority will be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it it is still possible to achieve similar results. Article 12 of the Directive set also mandatory deadlines for carrying out the investigative measures and requires that the recognition or execution should be carried out with the same priority and speed as for a similar domestic case.

Building on Mutual (but not blind) trust…

The mutual recognition regime been so incisive for the national systems of criminal law it is not surprising that several civil society organizations, academia and even ...Eurojust raised several reservations on the introduction of a too ambitious EIO.

The main message was to take better into account the specificity of the national systems as well as the need to protect fundamental rights and the proportionality principle - all concerns already raised as regards the implementation of the European Arrest Warrant (EAW), which is at the same time the most successful but also controversial mutual recognition EU measure.

This time, all these aspects have been thoroughly negotiated by the European Parliament which engaged a strong four year dialogue with the member states representatives (from the presentation of the proposal in April 2010 until February 2014) before reaching, after twelve trialogues and several technical meetings, a “first reading agreement” on the text.

Fundamental rights and mutual recognition: resolving the conflict?

 

The EP’s role can best be seen in recital 19 in the preamble to the Directive, which states:

“The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.”(emphasis added)

This principle is reflected in Article 11(1)(f) of the Directive, which permits a refusal to execute an EIO on human rights grounds. To qualify as “rebuttable” in a legislative text the presumption of compliance by another Member State with EU law and fundamental rights is an important progress in an European Union which since the Tampere programme has considered mutual recognition to be the cornerstone of the judicial cooperation in criminal matters and which until now has usually made only generic reference to protection of fundamental rights in mutual recognition instruments (one exception is the Framework Decision on the mutual recognition of financial penalties).

However by suggesting this wording the EP extended to criminal matters the principle expressed by the CJEU in EU asylum policy with the N.S.ruling, which states:“

The Member States, including the national courts, may not transfer an asylum seeker to the Member State indicated as responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. The Court considers that the Member States have a number of sufficient instruments at their disposal enabling them to assess compliance with fundamental rights and, therefore, the real risks to which an asylum seeker would be exposed were he to be transferred to the Member State responsible”       

By analogy with the NS case, the refusal to execute an EIO on human rights grounds must logically be mandatory, even though the legislation suggests that such a refusal is optional. But it should be noted that the wording of the Directive suggests that a defect in another Member State should be judged in individual cases, whereas the NS ruling referred rather to “systemic deficiencies”.

Primacy of EU law and protection of national constitution’s principles

But the EP was also concerned for the respect of the protection of the fundamental principles of the national criminal law systems. These principles can be protected by the Member States during the negotiation of an EU measure by using the so called “emergency brake” foreseen by Articles 82 and 83 TFEU. The point remain how to take in due account these same fundamental aspects also after the adoption of an EU measure.  The EP considered that the CJEU jurisprudence on Radu and Melloni (dealing with the implementation of the EAW) and giving priority to EU law also against constitutional principles in the Member States was going too far, so it insisted upon making explicit reference to the Member States’ constitutions.

The result of this pressure is mirrored in the first part of recital 39 in the preamble, which states :

“This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States' constitutions in their respective fields of application..”.

The final words of this recital echo Article 53 of the Charter of Fundamental Rights, which deals with the relationship between the Charter and (inter alia) national constitutions. While the CJEU found in Melloni that Article 53 justified setting a ceiling on national constitutional protection in that case, that judgment concerned an issue which had been extensively regulated by EU law (in absentia trials as a ground for refusal), whereas there are no equivalent provisions in the EIO Directive.

Will this text be sufficiently clear to push the CJEU to recognise a wider “margin of appreciation interpretation” of national authorities as regards JHA, as suggested by the former Advocate General Francis Jacobs some time ago?  We may have still to wait for years before knowing the right answer. However, it could be arguable that in the meantime, the CJEU should take the rules in this Directive regarding the relationship between human rights and mutual recognition into account when interpreting other EU mutual recognition measures, such as the EAW.

Conclusion

These are only some general observations on a Directive which requires a deeper analysis. However it is worth noting that the Directive makes already explicit reference to the first three post-Lisbon measures dealing with procedural guarantees for criminal suspects, namely:

-          Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings;

-          Directive 2012/13/EU on the right to information in criminal proceedings; and .

-          Directive 2013/48/EU on the right of access to a lawyer and the right to communicate when deprived of liberty.

Even though these are still only among the first EU criminal law texts adopted following the entry into force of the Treaty of Lisbon, all the pieces of the mosaic are progressively falling into place.

The EU’s common rules on detention: how serious are Member States about protecting fundamental rights?

By Debbie Sayers, Legal Research Consultant, http://interalia.org.uk

On 5 February 2014, the Commission published a damning report on its ‘common rules on detention’ confirming that, at best, only 18 of 28 Member States have implemented any of the instruments. This is a quantitative not qualitative study: there has been no evaluation of how well these rules have been applied or whether they have improved the lot of individuals.

The poor level of implementation of these very basic commitments to improve the rights of detainees is of concern. Every year, tens of thousands of EU citizens are prosecuted for alleged crimes or convicted in another Member State of the EU yet there is significant evidence of unacceptable disparity in standards of detention within Europe. Fair Trials International (FTI) has long noted the existence of lengthy pre-trial detention and the inconsistent availability of alternatives to detention such as electronic tagging as well as “overcrowding, violence, poor healthcare and lack of facilities”. Likewise, the former Council of Europe Commissioner on Human Rights, Thomas Hammarberg, has described the use of pre-trial detention as “virtually systematic in a number of European countries" with rates of 42% in Italy. The structural and systemic problem of overcrowding in the Italian prison system led to a pilot judgment by the ECtHR in 2013 which condemned Italy for inhuman and degrading treatment in overcrowded jails. The evidence of the need for action is clear.

Mutual recognition and a lack of mutual trust

To start at the beginning, the term ‘common detention rules’ relates to three mutual recognition Framework Decisions (FD) agreed by the EU to be implemented by 2011 and 2012 by all Member States. They form part of a broader judicial cooperation agenda which has focussed on the mutual recognition of judicial decisions and the approximation of law. The European Arrest Warrant [EAW] is the most notorious of these instruments.

Mutual recognition allows judicial decisions to ‘move’ freely between EU Member States based on the presumed existence of “mutual trust” between them. The approach has been predominantly prosecutorial, but, as experience with the operation of the EAW has demonstrated the fallacy of assumptions about trust, there have been increased efforts to establish specific individual safeguards to support the mutual recognition agenda. In 2009, the Council of the EU set out a ‘Roadmap’ for harmonizing some criminal procedural standards to “enhance citizens' confidence that the European Union and its Member States will protect and guarantee their rights”. To date, three Directives (the Directive on the right to interpretation and translation in criminal proceedings; the Directive on the right to information in criminal proceedings; and the Directive on the right of access to a lawyer) have been agreed with a further package recently proposed.

However, the EU had already taken action in respect of EU citizens who were non-residents in a Member State where they face criminal proceedings as it was recognised that, too often, they may end up in detention where residents may not. This can occur pre-trial, because of the fear of flight, and also at sentence, where non-custodial sentences may be considered inappropriate. The three instruments agreed were:

·         The Framework Decision on the Transfer of Prisoners to be implemented by 5.12.11. It allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. It also establishes a system for transferring convicted prisoners back to the Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence.

·         The Framework Decision on probation and alternative sanctions to be implemented by 6.12.11.  It applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person consents.

·         The European Supervision Order (ESO) to be implemented by 1.12.12. It enables a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where non-resident is suspected of having committed the offence to Member State where they are normally resident., thus, hopefully avoiding pre-trial detention.

In relation to detention conditions, a Commission Green Paper on Detention was also published in 2011 acknowledging that “excessively long periods of pre-trial detention are detrimental to the individual, can prejudice judicial cooperation between the member states and do not represent the values for which the European Union stands”. Pragmatically, mutual trust is undermined by inconsistent and unfair detention arrangements and the EU needs to address this.

“Fewer than half of EU Member States have implemented common rules on detention”

It is in this context that the Commission published its report on the implementation of these ‘common rules on detention’. Rates of compliance are poor:

·         FD on the Transfer of Prisoners: only 18 Member States have implemented it. Austria, Belgium, Czech Republic, Denmark, Finland, France, Croatia, Hungary, Italy, Luxembourg, Latvia, Malta, Netherlands, Poland, Romania, Slovenia, Slovakia and the UK. Only Denmark, Finland, Italy, Luxembourg and the UK had implemented it by the deadline. This is the only instrument the UK has implemented.

·         FD on probation and alternative sanctions: only 14 Member States have implemented it - Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, and Slovakia.  Only Denmark and Finland had implemented it by the deadline.

·         European Supervision Order: only 12 Member States have implemented it - Austria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, Slovakia. Only Denmark, Finland, Latvia and Poland had implemented it by the deadline.

In relation to the implementation legislation itself, the Commission has now highlighted some key concerns arising from its analysis which will need to be addressed by all Member States:

·         Member States must set out an effective procedure to give a role to “the person concerned in the transfer process” under the various FDs.

·         The principle of mutual trust is to be respected by achieving “the right balance” between respect for the sentence originally imposed and the legal traditions of Member States.

·         Member States must properly implement the duty to provide information about the sentence to avoid any differences discouraging use of the instruments.

·         The Commission’s view is that adding additional grounds for refusal and making them mandatory “seem[s] to be both contrary to the letter and spirit of the Framework Decisions”.

·         The time limits are to be respected and should be exceeded only in exceptional circumstances”.

·         Those provisions which link the FD and the EAW should be implemented. For example, Article 21 (which allows for the return of a person by EAW if s/he has not complied with an ESO) have not properly been implemented. The Commission describes this as ‘regrettable’ as Article 21 “would be very useful to allow persons awaiting trial for relatively minor offences to go home”

·         The Commission rules the declarations made by four Member States (Ireland, Malta, Netherlands and Poland) in relation to transitional provisions on the transfer of prisoners invalid because they were made after the adoption of the FD.

Those who have transposed the instruments are still requested “to review and align their national implementation legislation with the provisions of the Framework Decisions”.

Enforcing compliance and creating trust

The three FDs are interconnected and linked to the EAW. In its press release, the Commission confirms pragmatically that

“The rules [are].. an essential element of a common European area of justice ….[and]… important tools to further social rehabilitation of prisoners and reduce the use of pre-trial detention. Their proper implementation is crucial.”

They also have “the potential to reduce prison overcrowding and reduce prison budgets”.

There is an evident need for swift action to address these failures. From the perspective of the ‘suspect’, the non-adoption of the ESO by many Member States is concerning as it is a crucial ‘flanking measure’ for the EAW. FTI has long campaigned on the issue of bail in the EU, producing clear evidence of discrimination in the operation of decision-making (e.g. see the House of Lords report in 2007 on the European Supervision Order). The excessive and unfair use of detention for the non-resident suspect also undermines the right to a fair trial because it affects the suspect’s exercise of fair trial rights as well as the presumption of innocence. These fundamental rights are enshrined in Article 5 and 6 ECHR and Articles 6, 47 and 48 of the EU Charter of Fundamental Rights and merit active protection in practice. From the prosecution perspective too, cooperation cannot be made effective with such partial transposition.

 So what can be done? Infringement action against Member States is not possible until 1 December 2014 because of Article 10 of Protocol 36, which provides for a five-year waiting period before the Commission can sue Member States for non-implementation of EU ‘third pillar’ (criminal law and policing measures) adopted before the entry into force of the Treaty of Lisbon, such as these FDs. Whether the Commission will take such action at that point remains to be seen.

However, there is a broader point at stake: will these laws be used even if the FDs are implemented domestically and will they make any difference? The Commission’s report notes that the “limited figures available show that the Transfer of Prisoners is already used whereas no transfers have yet taken place under Probation and Alternative Sanctions and European Supervision Order”. We need to explore fully the reasons for the lack of commitment to these instruments. Is it a reflection of the prosecutorial drive behind the mutual recognition agenda or the absence of commitment to human rights protection? Is it the result of a lack of understanding (see FTI’s report) or weaknesses in training? Is it connected to resources, occupational cultures or a reluctance to cooperate? Or is it a mixture of all these factors? Over a hundred years ago, Roscoe Pound concluded that legislation which has not been the product of preliminary study of the conditions to which it was meant to apply will not respond accurately to social needs. Consequently, the process of making effective laws must go beyond statistics and data gathering to consider the human impact of its implementation.


Barnard & Peers: chapter 25