Brussels, 23/02/2007 (Agence Europe) - In order to resolve the current deadlock, the European Commission is prepared to consider the establishment of strengthened cooperation to guarantee the rights of suspects and defendants in the EU, said EU Justice Commissioner Franco Frattini in Berlin this week, attempting to breathe new life into the draft framework decision on procedural rights in criminal proceedings.
Better protection of rights of suspects and defendants. The draft legislation, based on mutual recognition, is the first in a series of new common minimum standards and rules on the rights of suspects and defendants in the EU. It will also be a vital complement to the European arrest warrant. The initial version sets out rights which could be applied across the board in Member States' criminal proceedings like providing access to a lawyer as soon as possible and throughout criminal proceedings; provision of interpreting and translation services free of charge; procedural guarantees for individuals unable to understand or follow proceedings; and providing suspects with information before their first interrogation.
German Presidency makes huge progress. The Hague Programme required the Council to adopt the draft framework decision by the end of 2005 but resistance from several Member States and Council of Europe hostility made it impossible to reach agreement. Reacting to reluctance from Member States, the German Presidency has produced a compromise text which reduces the scope of the legislation to information rights, legal assistance and translation and interpreting services. The new document is considered 'Strasbourg proof'. It gives explicit assurance that conflict is impossible with the European Convention of Human Rights (ECHR) and European Court of Justice case law (the Court of Justice is based in Strasbourg). The Council of Europe was concerned that its own rights would be preserved - it has indicated that it is backing the German Presidency's compromise deal. In a non-binding resolution adopted in April (based on a report by Kathalijne Buitenweg, Dutch Green/EFA), the European Parliament amended the European Commission's version to extend suspects' rights.
Fierce opposition from six Member States. As far as the UK, Ireland, Cyprus, Malta, Slovakia and the Czech Republic are concerned, harmonisation of procedural rights raises a genuine question of principle. Some countries see it as paving the way for the creation of an EU criminal code. These states, which back the adoption of a non-binding resolution, base their arguments on the fact that there is no specific legal basis in the EU Treaty giving the EU power to act in this field. The draft constitutional treaty would fill this gap, stipulating that in order to facilitate mutual recognition, the EU framework law may establish minimum rules on 'the rights of individuals in criminal proceedings'. Other Member States also disagree with the draft legislation for technical reasons. The United Kingdom, along with France and Spain, has special criminal proceedings rules which at times restrict the rights of suspects and defendants, particularly the length of time terrorist or organised crime suspects can be detained for questioning. In France, for example, a suspect's first interview with a lawyer may be postponed until after 124 hours of arrest if there is a serious risk of an imminent terrorist attack. Diplomatic sources suggest that the existence of such rules in national legislation would not necessarily prove an obstacle to the draft framework decision because EU legislation can always include limited get-out clauses.
Towards strengthened cooperation on the rights of suspects? The views of the six opposing Member States is encouraging the European Commission to seriously consider establishing strengthened cooperation (going ahead without unanimous agreement). 'The Commission firmly believes that a Framework Decision should be adopted unanimously by all 27 Member States. However, if one or two Member States will not accept a Framework Decision … the only solution may be to do so without them,' explained Franco Frattini on 20 February at a conference organised by the German Presidency in Berlin at the European Law Academy. Commission sources say that Frattini was making an explicit reference here to strengthened cooperation, commenting that diplomats were undecided about what they think is either a 'tactical plan' or a 'serious option', but it would at least clarify exactly how far the EU is prepared to go in establishing a common judicial area. The draft Framework Decision comes under the third pillar, making it is easier to organise 'strengthened cooperation' than if it came under the first or second pillar because no agreement from the European Commission or European Parliament is required and Member States have no power to veto. The only conditions to be met to allow strengthened cooperation is failure to reach unanimous agreement and the agreement of at least eight Member States, along with a qualified majority vote in favour at the Council. Strengthened cooperation has never yet been used in the EU, so this would be a test case. (bc)