Ed Cape and Zaza Namoradze Effective Criminal Defence in Eastern Europe Bulgaria l Georgia l Lithuania l Moldova l Ukraine Effective Criminal Defence in Eastern Europe Ed Cape Zaza Namoradze Effective Criminal Defence in Eastern Europe Eff ective Criminal Defence in Eastern Europe Ed Cape Zaza Namoradze Eff ective Criminal Defence in Eastern Europe ISBN 978-963-9719-10-1 © 2012 Soros Foundation–Moldova No part of this book may be reproduced in any form, by print, photo copy, microfi lm or any other means, without written permission from the relevant authors. PREFACE AND ACKNOWLEDGMENTS Th is book is based on a research project which was conducted under the framework of the Legal Aid Reformers Network (LARN) with fi nancial support from the Human Rights and Governance Grants Program of the Open Society Foundations and implemented by the Soros Foundation–Moldova, in cooperation with Open Society Institute–Sofi a, Open Society Georgia Foundation, International Renaissance Foundation–Ukraine, and the Open Society Justice Initiative. In the past decade the Open Society Justice Initiative, in collaboration with national Soros foundations, has helped to initiate and implement reforms revamping the national legal aid systems in a number of countries in Central and Eastern Europe and the former Soviet Union. As a result new legal aid laws were adopted in Lithuania in 2005, Bulgaria in 2006, Georgia and Moldova in 2007, and Ukraine in 2011. Th e right of access to legal assistance and legal aid is a crucial safeguard for the requirements of a fair trial, and these new laws have created important foundations for broadening accessibility and improving the quality of free legal aid services for indigent criminal suspects and accused persons. However, as this book demonstrates, some important shortcomings and challenges still remain to be dealt with before eff ective criminal defence rights are fully realised. LARN was created in 2009 as an international information-sharing network of organisations and individuals working to promote rights to legal aid and eff ective defence. LARN implemented the current research project, inspired by the 2010 research project entitled Eff ective Criminal Defence in Europe,1 which marked a major 1 Ed Cape, Zaza Namoradze, Roger Smith and Taru Spronken, Eff ective Criminal Defence in Europe, Antwerp: Intersentia, 2010. V Preface and Acknowledgments development in comparative criminal law in Europe and which has been an important resource supporting reforms across Europe. Like the original research project, the current study places the suspect and accused at the centre of the enquiry and examines the question of access to eff ective criminal defence from their perspective. Its overall aim is to advance the European Union’s legislative agenda on the rights of suspected and accused persons in criminal proceedings, to improve defence rights standards and their implementation, and to provide policymakers and practitioners in the research countries with evidence on shortcomings and recommendations for reforms. Th e project management team that provided research guidance and overall project coordination consisted of: Ed Cape of the University of West of England; Nadejda Hriptievschi, a lawyer from Moldova; and Zaza Namoradze, Director of the Budapest offi ce of the Open Society Justice Initiative. All have current or previous experience as practicing lawyers and have wide knowledge and experience of criminal justice systems in a range of jurisdictions. Ed Cape and Zaza Namoradze collaborated, together with others, on the 2010 Eff ective Criminal Defence in Europe project, which was funded by an action grant from the EU Justice, Freedom and Security Directorate and by the Open Society Institute, and which examined defence rights in eight EU member states and one accession country. Ed Cape has also carried out a number of projects concerned with defence rights and the criminal process in the EU and beyond, including an Open Society Justice Initiative publication entitled Improving Pretrial Justice: Th e Roles of Lawyers and Paralegals. Zaza Namoradze has directed a large number of projects concerning legal aid reforms, including national legal aid reform initiatives in the countries covered by the current research. Nadejda Hriptievschi, who provides overall guidance to LARN, has worked on several research projects on criminal justice in Moldova and has been actively involved in legal reform initiatives in the countries of Central and Eastern Europe and the former Soviet Union. Her enthusiasm, dedication and hard work has been critical in successfully executing the current research project. A project of this nature inevitably relies on a large number of people. Th e project was governed by a Steering Committee consisting of Velislava Delcheva (Open Society Institute–Sofi a), Tamuna Kaldani (Open Society Georgia Foundation), Victor Munteanu (Soros Foundation–Moldova), Roman Romanov (International Renaissance Foundation–Ukraine) and Zaza Namoradze (Open Society Justice Initiative). Th e project management team was given considerable assistance by a number of people, including Marion Isobel and Katalin Omboli (Open Society Justice Initiative), Vasylyna VI Preface and Acknowledgments Yavorska (International Renaissance Foundation–Ukraine) and Marcel Varmari and Tatiana Danilescu (Soros Foundation–Moldova). All of them played essential roles in its successful implementation. Steven Freeland (Professor of International Law at the University of Western Sydney, Australia) brought his considerable knowledge, skills and experience to the task of editing the country reports that are set out as chapters in Part II. Th e in-country researchers, of course, played a crucial role and they were: Yonko Grozev (Bulgaria), Besarion Bokhashvili (Georgia), Regina Valutyte and Inga Abramaviciute (Lithuania), Nadejda Hriptievschi (Moldova), and Gennadiy Tokarev and Arkadiy Buschenko (Ukraine). Th e in-country reviewers also played an important role in providing a critique of, and validating, the data provided by the in-country researchers and their names are set out in the respective chapters in Part II. Th e reviewers were: Roumen Nenkov (Bulgaria), Giorgi Chkheidze (Georgia), Raimundas Jurka (Lithuania), Vasile Rotaru (Moldova) and Mykola Khavroniuk (Ukraine). We also thank Tom Bass for editing the fi nal text and extend our gratitude to all of those, both named and unnamed, who have contributed to the research project and the book. We hope that this book, like the original study, will contribute to a deeper knowledge and understanding of the factors that infl uence access to e ff ective criminal defence. Our aim is that it will be a source of inspiration for a constructive and eff ective programme of policies and actions for setting standards and guidelines regionally within the European Union and the Council of Europe, and nationally through mechanisms designed to make access to eff ective criminal defence available to all who need it. Th e research will be presented and the book launched at a conference in Brussels on 7 June 2012, to which many of those with responsibility for standard- setting and implementation of defence rights are invited. We trust that this book will provide them with a valuable source of information and analysis. Th e millions of people who are arrested, detained or prosecuted every year across Europe have the right to be dealt with fairly and justly. Th is right should be made a reality. May 2012 Ed Cape Zaza Namoradze VII CONTENTS Preface and Acknowledgments...................................................................... V Contents ...................................................................................................... IX Biographies .................................................................................................. XXI PART I EFFECTIVE CRIMINAL DEFENCE IN A EUROPEAN CONTEXT ..................................................................... 1 Chapter 1 Eff ective Criminal Defence and Fair Trial .................................. 3 1. Introduction ..................................................................................... 3 2. Th e research project and methodology .............................................. 5 3. Eff ective criminal defence and fair trial ............................................. 9 4. Fair trial rights in an international context ........................................ 12 4.1 Th e global context .................................................................... 12 4.2 Th e European Convention on Human Rights ........................... 14 4.3 Th e European Union and procedural rights in criminal proceedings............................................................................... 17 4.3.1 Th e Lisbon Treaty ........................................................... 18 4.3.2 Th e procedural rights ‘roadmap’ ..................................... 22 5. Conclusions ...................................................................................... 27 6. Bibliography ..................................................................................... 28 IX Contents Chapter 2 Standards for Eff ective Criminal Defence ................................... 33 1. Introduction ..................................................................................... 33 2. Analysing eff ective criminal defence standards .................................. 33 3. ‘Criminal proceedings’ and ‘criminal charge’ ..................................... 35 4. Th e right to information