EU legal rights were part of the EU Criminal Law conference organized by the Greens/EFA group at the European Parliament, December 3. The Greens are insisting on increasing the protection of individuals across Europe and ensuring their fundamental legal rights are protected. 

Andrew Symeou, who was living in England at the time, was arrested on a European Arrest Warrant and sent to Greece on manslaughter charges. The arrest and extradition was based on identical signed testimonies from two of his friends who stated they had been forced to sign, and who immediately recanted, their statements when they left the police station. Symeou spent his time in detention in one of Europe’s worst prisons, where he saw a man murdered and multiple rapes. It took two years for his case to appear before a judge, was found innocent of all charges and released.

A young woman was arrested in Poland on a minor charge of drug possession for personal use and went to court and was sentenced. Later, she went to the UK without telling her parole officer, and a EWA was issued. Years later, she was arrested and about to be sent back to Poland. By then, she had a child. If she had been returned to Poland, the child would have gone into state care. In this case, the EWA was lifted in time.

Fair Trials International quote these as stark examples of how the European Arrest Warrant has been used to arrest European citizens in one European state and extradite them to another for prosecution. In these cases, due process and basic protection of individual rights had been ignored.

At present, EU states rely on mutual trust - that all Europeans will get judicial treatment comparable to what would be received anywhere else in Europe. However, as demonstrated by the two examples noted by Fair Trials International, that fundamental principle often does not always hold true. The current state of EU criminal law is a key issue for Europe’s Green parties. There are growing concerns about the numbers of violations of the principle of access to legal information in some EU states. 

For the Greens, this system of mutual trust that has been part of EU criminal law to date is not fit for purpose, and must be reviewed as the EU develops their role in criminal law.  “I demand we review the idea of mutual trust,” said Judith Sargentini, MEP for the Dutch Greens.  “The idea that we can organise judicial cooperation by saying we are all equal and we all trust each other, that any legal treatment is comparable to what we get at home does not hold true. I do not think mutual trust is the way forward as regards judicial cooperation.”

According to Fair Trials International, 200 people were arrested across Europe in foreign countries in 2011. Of these, 33% were denied access to an interpreter or a translation of documents; 15% were denied information about their legal rights or the reason for their arrest; 11% were denied access to a lawyer during the police interview.

"There is little sense of the human impact of judicial cooperation and judicial rights," said Jago Russell of Fair Trials International. "These rights protect people with families, homes and jobs. If they are not protected, lives can be destroyed. There is not a single country in the EU where there are not concerns about procedural standards. Every country has its problems.”

The current state of criminal law in the EU has become, for Russell and Fair Trials International, a result of excessive weight being given to the opinion of judges and prosecutors, without due weight being given to defense lawyers.

“It was a was shock to me that EU criminal justice paid very little attention to the opinion of lawyers. It is like making health care reform without talking to doctors. It has been dominated by judges and prosecutors, which is how we got to this position today of a number of mutual recognition measures and fast track extradition systems. We have only recently realised the need to put safeguards for basic procedural rights in place.” 

European Union criminal justice policy has been developing since the Amsterdam Treaty of 1999, but has been heavily tainted by legal demands after the September 11 attacks in the United States and the post 9/11 world. 

“The last decade has been dominated by the aftermath of 9/11, where the principle of due process has been rolled back in many countries as they try to counteract the threat of terrorism,” explained Rebecca Harms, German Greens MEP. “For instance, extradition and other mutual legal assistance have been based on the principle of mutual recognition.”

With the European Union working to establish open borders between member states, this freedom of movement requires the cooperation of multiple police and judicial systems. Just as goods and services should be able to move about freely, so should its citizens. However, with that there needs to be recognition that there is are shared basic legal rights, especially in criminal law.

“Over the decades, the development of the common market had implications for criminal law regarding enforcement, including prevention of fraud with community subsidies,” said Harms. “Open borders, which are the ultimate aim of a common market, would need cooperation between police and judicial authorities of the member states.”

The Greens are pressing forward on the EU criminal law structure because, according to Harms, “EU criminal justice is an area of European law that is growing fast and that is probably one of the most challenging as it presents us with several dilemmas. We Greens stand for a modern society. That means combining social and economic justice with also environmental justice. We are civil libertarians and want a society free from surveillance and repression.”

To that end, establishing basic legal standards for all European across the EU is essential. This system must have the confidence of the judiciary through the establishment of procedures, rather than a continuation of the system of mutual trust.

“A number of member states I am sure would love to return to this myth that they can trust all of their neighbours - it is very diplomatically convenient. But it would be a terrible mistake,” finishes Russell. “But if we cannot get something as basic as the right to a fair trial secured in the EU, then we  do not, as Europeans, have a sound base for any democratic principles that we try to export around the world.”

This is the first of a two-part series on EU Criminal law. Next week, a European prosecutor to fight financial crimes.