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Protecting Fundamental Rights in Cross-Border Proceedings: Are Alternatives to the European Arrest Warrant a Solution?

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Protecting Fundamental Rights in Cross-Border Proceedings: Are Alternatives to the European Arrest Warrant a Solution? Protecting fundamental rights in cross-border proceedings: Are alternatives to the European Arrest Warrant a solution? About Fair Trials 0 Fair Trials is a global criminal justice watchdog with offices in London, Brussels and Washington, D.C., focused on improving the right to a fair trial in accordance with international standards. Fair Trials’ work is premised on the belief that fair trials are one of the cornerstones of a just society: they prevent lives from being ruined by miscarriages of justice and make societies safer by contributing to fair and effective justice systems that maintain public trust. Although universally recognised in principle, in practice the basic human right to a fair trial is being routinely abused. Its work combines: (a) helping suspects to understand and exercise their rights; (b) building an engaged and informed network of fair trial defenders (including NGOs, lawyers and academics); and (c) fighting the underlying causes of unfair trials through research, litigation, political advocacy and campaigns. In Europe, we coordinate the Legal Experts Advisory Panel (LEAP) – the leading criminal justice network in Europe consisting of over 180 criminal defence law firms, academic institutions and civil society organisations. More information about this network and its work on the right to a fair trial in Europe can be found here. Contacts Laure Baudrihaye-Gérard Ilze Tralmaka Legal Director (Europe) Legal and Policy Officer +32 (0)2 894 99 55 +32 (0) 279 23 958 [email protected] [email protected] fairtrials.org @fairtrials @fairtrials Fair Trials This report is produced as part of the project “Addressing the overuse of pre-trial detention and the disproportionate use of EAW with alternative cross-border instruments” (EAW-ALT) co-financed by the EU Justice Programme and coordinated by Fair Trials, with partners the Ludwig Boltzmann Institute of Fundamental and Human Rights (Austria), the Centre for European Constitutional Law (Greece), the Irish Council for Civil Liberties (Ireland), the European Institute of Public Administration (Luxembourg) and Cecilia Rizcallah (Belgium). We would like to thank our partners for their contributions to this report, as well as Ms. Isaline Wittorski for her invaluable work on this project, including this report. This document is possible thanks to the financial support of the Justice Programme of the European Union. The contents of this document are the sole responsibility of the author and can in no way be taken to reflect the views of the European Commission. 1 Table of Contents Executive Summary .............................................................................................................. 6 Introduction ........................................................................................................................ 11 Methodology ...................................................................................................................... 14 The scope of the research ............................................................................................... 14 Challenges in the research .............................................................................................. 16 Part 1: The need for alternatives to the EAW ..................................................................... 19 1. Preventing the misuse of the EAW for questioning ................................................... 19 2. Preventing the unjustified use of pre-trial detention ................................................. 21 3. Exposing people to inhuman and degrading treatment due to prison conditions .... 24 4. Discriminatory impact ................................................................................................ 28 Part 2: Obstacles to the use of alternative measures .......................................................... 33 1. Complex relationship between authorities through mutual trust .............................. 33 i. The application of the principle of mutual trust to EU’s criminal justice policy . 34 ii. The absence of robust mutual trust for alternatives to detention ..................... 36 2. The inconsistent application of the principle of proportionality ................................ 39 i. Lack of proportionality assessment requirement in the EU legal framework ..... 40 ii. Lack of proportionality assessment requirement in the domestic legal frameworks .........................................................................................................42 3. The role of the defence and the insufficient implementation of procedural safeguards in cross-border proceedings ...................................................................................... 45 i. Access to legal assistance ................................................................................4 6 ii. Access to case file ............................................................................................50 iii. Access to interpretation and translation .......................................................... 52 iv. Right to an effective remedy ............................................................................5 4 4. Complex legal and institutional frameworks ............................................................. 56 i. Complexity of legal frameworks .........................................................................57 ii. Complexity of institutional frameworks .............................................................. 59 Policy recommendations ..................................................................................................... 62 European Commission ................................................................................................. 62 EU Member States .......................................................................................................6 4 2 Judicial and prosecutorial authorities ..........................................................................6 4 Lawyers .........................................................................................................................6 5 Annex: Legal and institutional framework of alternative measures in partners countries .................................................................................................................... 66 Austria ..........................................................................................................................6 6 Belgium ........................................................................................................................70 Greece ..........................................................................................................................7 2 Ireland ..........................................................................................................................7 4 Luxembourg .................................................................................................................7 6 3 Acronyms AFSJ Area of Freedom, Security and Justice CJEU Court of Justice of the European Union COE Council of Europe CPT European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment EAW European Arrest Warrant ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights EU European Union FRA European Union Fundamental Rights Agency LEAP Fair Trials’ Legal Experts Advisory Panel Definitions Charter Charter of Fundamental Rights of the European Union. Commission European Commission. Council Council of the European Union. EIO Directive Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. FD ESO Council Framework Decision 2009/829/JHA of 23 October 2009 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. FD EAW Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States - Statements made by certain Member States on the adoption of the Framework Decision. 4 EU Mutual Recognition EIO, ESO, FD EAW, FD PAS, FD Transfer of Prisoners. Instruments FD PAS Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions. FD Transfer of Council Framework Decision 2008/909/JHA of 27 November 2008 on Prisoners the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. Member States Member States of the European Union. Procedural Rights EU Directives on the right to interpretation and translation, the right to Directives information, the right of access to a lawyer, procedural safeguards for children, the right to the presumption of innocence and to be present at trial and the right to legal aid. Requested person Person subject to an EU mutual recognition instrument. 5 Executive summary The European Arrest Warrant (EAW) is regarded as the flagship EU judicial cooperation measure. It was adopted in the wake of the 2001 9/11 attacks amid concerns that existing extradition laws were too
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