Pilate washing his hands. The CJEU on pre-trial detention

By Adriano Martufi (Assistant Professor, Leiden University) and Christina Peristeridou (Assistant Professor, Maastricht University)

Introduction

The very recent ruling of the CJEU in DK (C-653/19 PPU, 28 November 2019) came to verify two quite depressing suspicions about the current status of European criminal law. First, Directive 2016/343 on the presumption of innocence remains an instrument with staggeringly limited applicability especially in the field of pre-trial detention. Second, pre-trial detention stands as a political and legal hot potato: neither the CJEU nor the EU legislator are eager to provide common standards on pre-trial detention, even if the lack of these standards is partly to blame for problems of mutual trust between judicial authorities in the Member States.

The facts

In DK, the Bulgarian Specialised Criminal Court requested a preliminary ruling for the compatibility of the national code of criminal procedure with Article 6 of the Directive on the presumption of innocence, and Articles 6 (right to liberty) and 47 (fair trial and effective remedy) of the EU Charter of Fundamental Rights. In Bulgarian criminal procedure, when the case of an already detained suspect reaches trial, the trial court is responsible to deal with the detention, next to the merits of the case. Once the trial court finds the detention lawful, it becomes indefinite and can only be reviewed on application of the defendant; in such application the defendant must convince the court of changed circumstances that would justify release.

The Bulgarian court wonders whether this national rule shifts the onus from the prosecution to the defendant in providing evidence for release, thereby conflicting with Article 6 of the Directive on the burden of proof, which states that the burden of proof in proving guilt is for the prosecution. DK has been in custody since 11 June 2016 and has filed various applications for release to the trial courts (first and second instances). All of these were rejected since he failed to provide evidence of changed circumstances pointing towards release.

The ruling

The Court, ruling under the urgent procedure, delivered a short and to the point judgement where it found that Article 6 of the Directive on the presumption of innocence and Articles 6 and 47 of the Charter do not apply to the situation at hand (para 42). The syllogism is based on a collection of arguments from the wording of the Directive together with previous jurisprudence. First, the Directive only provides for minimum harmonisation and it does not lay down rules on pre-trial detention exhaustively. Indeed, in previous case law the Court verified that the examination of reasonable suspicion, the evidence used and the judicial reasoning in ordering pre-trial detention remain subject to national law (Milev). Second, a grammatical reading of Articles 4 and 6, and recitals 16 and 22 of the Directive reveals, according to the Court, an implicit distinction between judicial decisions on guilt and other procedural acts such as remand procedures. Following AG Pitruzzella’s Opinion, the argument is that, in contrast with Article 4 (public reference of guilt) which applies only to decisions of pre-trial nature, Article 6 (burden of proof) applies solely to decisions on guilt. Thus, the burden of proof must be borne by the prosecution only for judicial decisions pertaining to a finding of guilt, and not for other decisions of pre-trial nature. Third, since this case falls outside the realm of the Directive – and thus EU law – the Charter is not applicable (Article 51). Articles 6 and 47 of the Charter cannot be invoked ad hoc, as there is no application of EU law.

Commentary

The Court in DK confirms the European Union legislator’s view on the presumption of innocence being a thin, limited concept. The Directive on the presumption of innocence had little ambition, putting forward a minimalistic presumption. To this extent, DK has no transformative effect: there is no brave expansion of EU law with some sort of judicial activism. The Court upholds the status quo. Yet this mundane result does not sit well with the increasing discomfort of having judicial cooperation without common pre-trial detention standards. Given that the overuse of detention on remand has become increasingly problematic in numerous EU legal systems – even leading to exceptions to the once unyielding mutual trust in Aranyosi – one could hope that this Directive would form a stepping stone to regulate certain aspects of pre-trial detention.

After all, the ECtHR has repeatedly linked the presumption of innocence and pre-trial detention, as the latter may negatively affect the former. In the absence of legislative harmonisation, it would arguably fall to the CJEU to fill the ‘gaps’ of protection left by the EU legislator. DK could offer such opportunity: very recent ECtHR case law has taken aim at practices of shifting the burden of proof within remand proceedings similar to those seen in DK. It would have been quite easy for the CJEU to fall back to ECHR standards, which seemed tailored to the problem raised in DK. Yet the Court did not engage into a carpe diem moment. What is more, the arguments developed by the Luxembourg judges are far from flawless and deserve closer scrutiny.

Interpretation of the Directive

To begin with, the Court held that the situation in DK escapes the scope of the Directive in a simplified and incomplete manner. The Court draws the strength of its arguments from the grammatical reading of the Directive as provided by AG Pitruzzella. According to the latter, while some provisions of the Directive cover trial and pre-trial measures alike, others target exclusively trial measures. This is extracted from references made in Article 4 (public references to guilt) to all ‘judicial decisions’ other the one on guilt. An all-encompassing notion is surely not repeated by Article 6 (burden of proof) and the elucidations on this article provided by the preamble. This grammatical analysis, according to the AG and the Court, points to the conclusion that the two provisions are meant to apply to different stages of criminal process. It is indeed the case that Article 6 speaks of the ‘burden of proof for establishing the guilt’ of the suspect, and not of any burden of proof. Having said that, one could argue that if the legislator had made such distinction between pre-trial and trial stage pertinent for the applicability of these articles, it would have made that more explicit in the text.

In light of the above, it is perplexing that in the previous case of RH the Court dealt with the issue quite differently. There it provided a different reading of Article 6 of the Directive by stating that this provision broadly refers to ‘any obligation on the judge or the competent court to seek both elements of inculpatory and exculpatory evidence’ (para 56 in RH). In doing so, it established a conceptual connection between Articles 4 and 6 of the Directive, implying that Article 6 would be relevant for pre-trial detention. By contrast, the Court in DK tried to nuance this link, in an effort to rule out the relevance of Article 6 for pre-trial detention proceedings. This is however surprising as, in reality, the presumption of innocence does indeed apply to those proceedings under ECHR standards and under most, if not all, national legal systems.

Conclusively, even if the Court’s reading of the Directive is not prime facie implausible, the lack of any further argumentation against extending Article 6 to pre-trial detention leaves much to be desired. All in all, the AG’s Opinion offers a more complete and holistic account to support such a thin understanding of the presumption of innocence. The travaux preparatoires showed that the Commission had insisted on excluding pre-trial detention from this Directive all together (point 33 of Opinion). The Court's reading of the Directive would have appeared less legalistic and more convincing, had it explained its change of heart from RH by referring to the telos of the Directive as intended by the drafters.

The Charter

But the Court was also asked to interpret Articles 6 (right to liberty) and – surprisingly – 47 (effective remedy and fair trial) of the Charter. Based on the facts of the case, one would have expected the Bulgarian court to request the interpretation of Article 48 (presumption of innocence). It is not apparent why the right to an effective remedy (or generally to a fair trial) is relevant here, although one may argue that the shift of the burden of proof described above challenges the effectiveness of the remedy: being in custody, DK could not easily provide new circumstances to challenge his detention. Having said that, an (additional) argument including the presumption of innocence (Article 48 Charter) would have been stronger. This is confirmed by the Opinion, as AG Pitruzzella groups Articles 47 and 48 together although no reference to Article 48 was made by the referring court.

In spite of these inconsistencies, the Court’s way of dealing with the interpretation of the Charter is bizarrely introvert. With a few laconic sentences (para 40-41), it dismisses the national court's requests stating that the situation at hand did not fall under EU law (the Directive) and therefore the Charter's safeguards could not be consistently triggered. Relying on Article 51, the Court aseptically reiterates that the Charter comes into play only when national authorities are ‘implementing EU law’.

Yet, the Court has taken the view in the past that the Charter could be applicable not only when EU law is implemented, but also when a more tenuous connection exists. In our case, whereas pre-trial detention is not exhaustively regulated by the Directive, some parts are indeed affected (Article 4 prohibits references to guilt in pre-trial detention orders). Thus, a connection with EU law does exist, and there could be an argument in favour of using further the Charter following Åkeberg Fransson. Furthermore, the Charter has been used in the past to cover lacunas. In Aranyosi, while the EAW Framework Decision did not provide any ground for refusal on grounds of (potential) fundamental rights' violations, the Court used the Charter to fill up this lacuna and substantially created one.

In Aranyosi, the Court followed a more principled approach, even going against a literal or teleological interpretation of the legal instrument in question. Remarkably, this happened even though the Luxembourg judges were under huge pressure to uphold mutual trust and maintain the EAW procedure unaltered. Why didn’t the Court do the same in DK?

Notably, we are not the only ones to raise this question. AG Pitruzzella himself criticises heavily (and in a rather strong tone) the lack of common standards for pre-trial detention and urges the EU legislator to move forward with this subject (points 20-22). Quite interestingly, however, he concedes that he has ‘no choice’ but to conclude that the facts in DK fall outside Union law. Similar remarks were expressed by the Opinion in Milev, with AG Wathelet disagreeing strongly with the Commission’s view that the Directive did not include any substantial provisions for pre-trial detention (points 55-57).

Explanation of Court’s approach

So why didn’t the Court extend Article 6 application on the burden of proof to pre-trial detention, following an application of the Charter?

One plausible explanation is that the Charter is not automatically conducive to an expansion of the protective scope of this Directive. The Court has reiterated in Milev (para 47) and in DK that harmonisation is not exhaustive. In this sense, this Directive provides for a partial (and minimum) harmonisation as only certain aspects of the presumption of innocence are dealt with. Thus, in this case the Charter cannot expand the scope of the harmonisation more than the way the Directive already defines it. In constitutional terms, one could argue that the Court may have been wary to step beyond the red lines set by the principles of subsidiarity and conferral. Of course, the Luxembourg judges could easily shield themselves behind the inherent vagueness of the presumption of innocence. This is a notoriously elusive concept, poorly implemented in practice and theoretically divisive. Some national laws hardly go any further that a statement of principle and, despite sincere and sophisticated efforts, scholarship is deeply divided on its meaning. In this sense, the EU legislator was quite brave to consider touching upon it. In our view, the Directive would have enjoyed more success and less uncertainty, had the harmonisation of the presumption of innocence been complete.

A second explanation for not following a principled approach may derive from a general unwillingness to engage in judicial activism, especially in light of the delicate legal issue underlying the preliminary ruling. Pre-trial detention is a controversial topic, as the debate on its harmonisation at EU level clearly reveals. On multiple occasions, the EU has indicated that it may adopt minimum rules in these matters (Green Paper, EP Resolution), and yet so far the reaction by Member States has been lukewarm. Pre-trial detention is regarded as being incredibly diverse and therefore complicated to harmonise, so that EU legislator has chosen to focus on the less troubling alternative measures (with the so-called ESO Framework Decision).

Arguably, in the case at hand, the Court is reluctant to touch upon pre-trial detention given the strong opposition of both the Commission and the Council to include this within the scope of the Directive. But pre-trial detention does have a strong human component that is difficult to ignore: before excluding the situation at hand from Union law, AG Pitruzzella half-heartedly admits that the defendants in the domestic proceeding had as only option to bring their case before the ECtHR – a scenario which, as the AG himself recognises, may take years to materialise (point 21). This is a simple but powerful remark, shifting the perspective from the European courts, with their intricacies and conflicts, to the one of the defendant. The question – implicitly but ever so powerfully posed – is whether or not the time has come for the EU to address pre-trial detention as an EU matter.

A third explanation invites us to look at DK in the light of the prior case law concerning references issued by Bulgarian courts. Before DK, two more cases were raised by the same court, challenging the compatibility of domestic pre-trial detention regime with EU law. Both in Milev and in RH, the Bulgarian court requested clarification for the same national legislation and its relation to the Directive. As explained by AG Wathelet in Milev, the pre-trial detention regime had been amended due to ECtHR developments but the status quo divided the judges. In RH, the Bulgarian court even revealed some details of the internal judicial struggles amongst the Bulgarian Supreme Court and the lower courts: the former had ordered the latter not to wait for the response of the preliminary reference procedure, in order to rule on the pending status of the detention ‘within reasonable time’. Due to the defiance of the lower court, even disciplinary proceedings were launched. This occurrence was even put forward as a question to the CJEU regarding judicial independence (a rather fashionable topic these days), with regard to the power to prevent lower courts from waiting for the CJEU’s response in preliminary reference procedure. With this background in mind, we could see DK as a request for the CJEU to play the referee for a national debate. This may provide further leads to understand the Court's reluctance to rule on this topic.

But leaving aside the domestic quarrels between Bulgarian courts, the fact remains that a struggle is taking place in that country to uphold human rights standards and enhance their level of protection in criminal proceedings. It is only natural that the Directive on the presumption of innocence – especially in light of the wider interpretation given in RH – would be used by Bulgarian judges as a breeding ground to achieve that result. DK could in fact be the opportunity for the CJEU to exercise its role as ‘competence regulator’ – aiguilleur des compétences (point 21 Opinion). Referring to Vedel’s theory of constitutional control, AG Pitruzzella advised the Court to seize this opportunity and give an indication to the national authorities of the right path for reforming their national procedure on pre-trial detention. As has become apparent, the Court did not follow his advice.

DK might have the effect of discouraging national courts to follow up with more questions on the application of the Directive in relation to pre-trial detention. Yet it is a wonderful addition to previous case law, demonstrating that pre-trial detention is increasingly becoming a candidate for intervention by the EU; the question of harmonising pre-trial detention cannot be ignored much longer if national courts keep asking the CJEU to intervene.

Barnard & Peers: chapter 9, chapter 25

JHA4: chapter II:4
Art credit: Jan Lieven, via Wikicommons 

Human Rights and the European Arrest Warrant: Has the ECJ turned from poacher to gamekeeper?

Steve Peers*

From its panicked conception in the febrile months following the 9/11 terrorist attacks, the European Arrest Warrant (EAW) has been the flagship of EU criminal law. Replacing traditional extradition law with a fast-track system which scraps most of the traditional restrictions on extradition, it has alarmed critics concerned by miscarriages of justice, but thrilled supporters who welcomed the speedier return to justice of a greater number of fugitives.

Despite qualms by national constitutional courts, the ECJ has long been insouciant about the human rights critique of the EAW. It dismissed a challenge to the validity of the EAW law on human rights grounds, and (in effect) ridiculed a national court which asked if it was possible to refuse to execute an EAW due to human rights concerns, answering a ‘straw man’ argument the ECJ invented instead of the serious questions sent by the other court. In its Melloni judgment, the ECJ placed a ceiling on the application of national human rights protection to resist execution of an EAW; but it never enforced a corresponding floor for those rights. Again and again, the Court ruled that national courts could only refuse to execute EAWs on the limited grounds expressly mentioned in the EAW law, instead focussing exclusively on the need to make the EAW system as effective as possible.

However, since the entry into force of the Lisbon Treaty, this staunch approach has been mitigated by the adoption of six new EU laws on various aspects of fair trial rights – five of which also confer procedural rights on fugitives challenging the application of an EAW. (On the implementation of the first two of these laws, see the report just adopted by the EU’s Fundamental Rights Agency). In the last year, the ECJ has begun to interpret these laws (see the judgments in Covaci, Balogh and Milev).

But even apart from these fair trials laws, the ECJ in the last eighteen months has begun to show a striking concern for ensuring at least some protection for human rights within the EAW system. Last year, in Lanigan (discussed here), the Court ruled that if a fugitive was kept in detention in the executing State while contesting an EAW there, the limits on the length of detention in extradition cases set out in the case law of the European Court of Human Rights (ECtHR) apply, by virtue of the EU Charter of Fundamental Rights.

This spring, the ECJ turned its attention to detention conditions in the Member State which issued the EAW. Following soon after concerns expressed by the German constitutional court on these issues (discussed here), the ECJ ruled in Aranyosi and Caldaruru that the German authorities, when executing EAWs issued by Hungary and Romania, had to consider concerns raised by the fugitives about prison overcrowding in those countries, which had led to ECtHR rulings finding violations of Article 3 ECHR (freedom from torture or other inhuman or degrading treatment or punishment). The national court had to apply a two-step procedure in such cases, assessing whether there was a) a systemic failure to ensure decent prison conditions in those States, and b) a ‘real risk’ that the individual fugitive would be subject to such conditions if the EAW was executed.

What if these tests were satisfied? The ECJ was unwilling to backtrack from its position that the list of grounds to refuse to execute an EAW set out in the EAW law is exhaustive. Instead, it ruled that the executing State’s authorities had to postpone execution of the EAW until the situation in the issuing State had improved. (The EAW law is vague about grounds for postponing the execution of an EAW, and the ECJ had already ruled in Lanigan that the deadlines to execute an EAW set out in the law could, in effect, be ignored if necessary). If the fugitive was detained in the executing State in the meantime, the limits on detention set out in Lanigan applied, with the additional proviso that a fugitive could not be detained indefinitely pending execution of an EAW. (In the later case of JZ, the ECJ aligned the definition of ‘detention’ in the EAW with the ECtHR case law on this issue).

This was only the beginning of the ECJ’s scrutiny of issuing States’ laws and practice in the EAW context. In Bob-Dogi, the Court ruled that Hungary could not simply issue EAWs as a stand-alone measure, with no underlying national arrest warrant, inter alia because the purpose of requiring the prior issue of a national arrest warrant was to ensure the protection of the suspect’s fundamental rights. The previously paramount objective of efficiency of the EAW system – which would obviously have dictated the opposite conclusion – was mentioned only in passing. Moreover, the Court side-stepped its prior refusal to accept additional grounds for refusal to execute an EAW, concluding that the EAW had not been validly issued in the first place.

Next, in Dworzecki, the ECJ insisted that a Member State issuing an EAW following a trial held in absentia had to have made proper efforts to find the fugitive before the trial. In this case, the law expressly allows for non-execution of the EAW.

Finally, in a trilogy of cases decided last week, the Court ruled that issuing Member States don’t have full discretion to decide what a 'judicial authority' is, for the purpose of issuing EAWs. The concept extended beyond judges to include those administering the justice system, such as Hungarian prosecutors (Ozcelik). However, it does not extend to the Swedish police (Poltorak), or to officials in the Lithuanian justice ministry (Kovalkovas). (British readers may wish to compare these rulings to the Supreme Court’s ruling in the Assange case).

Again, as in the Bob-Dogi judgment, the Court side-stepped the ‘exhaustive grounds for non-execution’ problem which it had previously created for itself, by ruling (in Poltorak and Kovalkovas) that the relevant EAWs had never been validly issued at all. Also, in an interesting use of ‘soft law’, the Court ruled that Sweden and Lithuania could not argue that those invalid EAWs should remain valid for a limited period until they changed their laws, since the Council had warned them back in 2007 in an evaluation report that these practices infringed the EAW law. Criminal defence lawyers – and justice ministry officials – may want to look at the Council evaluations of all Member States in detail in this light, since they contain many other criticisms of national implementation of the EAW.

Comments

Has the Court turned from poacher to gamekeeper of human rights in the EAW context? Certainly there are still many concerns about miscarriages of justice as regards the EAW (see the Fair Trials website, for instance). But the rulings suggest a significant change of direction, which addresses some concerns and may have opened up the door to addressing others. What might explain this turn-around?

One factor may be the ruling of the German constitutional court on detention conditions in the EAW context, although it’s notable that the ECJ was never previously receptive to constitutional courts’ concerns about the EAW. Another factor may be a willingness to compromise after the ECJ’s controversial ruling on EU accession to the ECHR, in which it lambasted the draft accession treaty for (among other things) not taking sufficient account of the ECJ’s case law on mutual recognition in Justice and Home Affairs matters, which only allowed for human rights to trump mutual recognition in ‘exceptional’ cases. It’s possible that having marked its territory in that judgment, the ECJ felt it could relax and adopt a more flexible approach of its own volition (and under its own control), which might facilitate discussions on renegotiation of the accession agreement.

Another aspect of the background to this case law may be concerns about the adequate protection of human rights and the rule of law in a number of Member States. The formal process for sanctioning or warning Member States about such concerns is set out in Article 7 TEU, but the EU is unwilling to use it at the moment. The preamble to the EAW law says that the EAW system can only be fully suspended as regards an entire Member State if Article 7 is invoked. The ECJ clocked that provision in Aranyosi and Caldaruru, but then concocted the compromise position of postponing execution of EAWs in individual cases until concerns about detention conditions could be addressed: a measured, individualised solution for these particular human rights problems with the EAW.

Furthermore, the guarantee of judicial control of the issue of EAWs in recent judgments is expressly justified by reference to ‘the separation of powers which characterises the operation of the rule of law’. Despite the reluctance of the EU to chastise Member States for systematic concerns about the rule of law, the CJEU’s rulings at least ensure that any general human rights concerns are addressed at the level of application of EU legislation.

Indeed, these recent judgments might not be the end of the story: they can fuel arguments for the postponement or invalidity or EAWs due to other human rights concerns too. In particular, fugitives could argue that the prospect of long pre-trial detention in another Member State is also a reason to postpone execution of an EAW – although this argument is only coherent if the fugitive is not being detained in the executing State in the meantime. Already the Aranyosi and Caldaruru judgment raises awkward questions about how to judge what happens in another Member State’s prisons – so much so that the German courts have referred the Aranyosi case back to the CJEU with further questions.  Postponing the execution of an EAW does not, by itself, tackle the underlying problem of prison overcrowding, and it leads to the risk that those who have committed crimes may consider moving to another Member State to increase their odds of enjoying de facto impunity for them.

This strengthens the case for EU legislative intervention as regards prison conditions and length of pre-trial detention in the EAW context. The Commission issued a Green Paper on this issue back in 2011, and Member States were not enthusiastic. But the Commission has indicated in light of the recent rulings that it may make a proposal in future. (See also the new report of the EU Fundamental Rights Agency on these issues). This would be a good opportunity to make further reforms to the EAW system, to require a proportionality check before issuing EAWs in the first place – so that no one is subject to an EAW for the theft of a piglet, or someone else’s beer at a house party – and to build in more frequent use of European Supervision Orders (a form of ‘Euro-bail’), the EU laws on transfer of prisoners and sentences, and the use of modern technology to conduct more criminal proceedings with the virtual (but not the physical) presence of the suspect (see generally the Ludford report on possible reforms of the EAW system). There is a better balance between effective prosecutions and human rights concerns waiting to be struck.

Barnard & Peers: chapter 9, chapter 25

JHA4: chapter II:3, chapter II:4

Photo credit: picture – alliance/Horst Galuch

* This post is based on a keynote speech I gave on 10^th November 2016, at a conference on criminal justice and human rights organised by the EU Fundamental Rights Agency in Bratislava

EU law and the ECHR: the Bosphorus presumption is still alive and kicking - the case of Avotiņš v. Latvia

Stian Øby Johansen, PhD fellow at the University of Oslo Faculty of Law*

Yesterday, 23 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of Avotiņš v. Latvia. This seems to be the ECtHR’s first detailed appraisal of the so-called Bosphorus presumption (the rule on the relationship between EU law and the ECHR) after the Court of Justice of the European Union (CJEU) in Opinion 2/13 rejected a draft agreement providing for the accession of the EU to the European Convention of Human Rights (ECHR). It also provides a first glimpse of how the ECtHR views the EU law principle of mutual trust, which has become particularly dear to the CJEU over the last couple of years.

THE BOSPHORUS PRESUMPTION AND OPINION 2/13

For the uninitiated: the Bosphorus presumption refers to a doctrine in the case-law of the ECtHR that goes back to the 2005 judgment in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland. In that judgment the ECtHR first stated, in line with previous case-law, that member states of an international organization (such as the EU) are still liable under the ECHR for “all acts and omissions of its organs regardless of whether the act or omission in question was a consequence […] of the necessity to comply with international legal obligations” (Bosphorus para 153). It also recognized “the growing importance of international cooperation and of the consequent need to secure the proper functioning of international organisations” (Bosphorus para. 150). In an attempt to reconcile these two positions, the ECtHR established what is now known as the Bosphorus presumption or the presumption of equivalent protection of ECHR rights by the EU, even though the EU is not a party to the ECHR:

155. In the Court’s view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides […]. By “equivalent” the Court means “comparable”; any requirement that the organisation’s protection be “identical” could run counter to the interest of international cooperation pursued […]. However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.

156. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient.

Many have been curious about whether the ECtHR would modify the Bosphorus presumption following the rather belligerent rejection of EU accession to the ECHR by the CJEU in Opinion 2/13. In the foreword of the ECtHR’s 2015 Annual Report its President, Guido Raimondi, indeed seemed to signal an interest in shaking things up (emphasis added):

The end of the year was also marked by the delivery on 18 December 2014 of the Court of Justice of the European Union’s (CJEU) eagerly awaited opinion on the draft agreement on the accession of the European Union to the European Convention on Human Rights. [T]he CJEU’s unfavourable opinion is a great disappointment. Let us not forget, however, that the principal victims will be those citizens whom this opinion (no. 2/13) deprives of the right to have acts of the European Union subjected to the same external scrutiny as regards respect for human rights as that which applies to each member State. More than ever, therefore, the onus will be on the Strasbourg Court to do what it can in cases before it to protect citizens from the negative effects of this situation.

Yet, in the ECtHR Grand Chamber judgment in the case of Avotiņš v. Latvia, it can clearly be seen that – spoiler alert – the Bosphorus presumption is still alive and kicking. Indeed, as I will show below, the ECtHR for the first time applies it to a case concerning obligations of mutual recognition under EU law. This is notable, since one of the main arguments the CJEU put forward in Opinion 2/13was that EU accession to the ECHR posed such a big threat to the principle of mutual trust that it would “upset the underlying balance of the EU and undermine the autonomy of EU law” (Opinion 2/13 para 194).

BACKGROUND TO THE CASE

Before we look at how the Grand Chamber applied the Bosphorus, it is necessary to summarize the key facts of the case. Mr Pēteris Avotiņš is a Latvian national, who in May 1999 borrowed 100 000 US dollars from a company named F.H. Ltd. and undertook to repay that sum with interest by 30 June 1999. The loan contract was governed by Cypriot law, and Cypriot courts had non-exclusive jurisdiction to hear any disputes arising out of it.

In 2003, F.H. Ltd. brought proceedings against Avotiņš in a Cypriot district court, alleging that he had not repaid the above-mentioned debt. Since Avotiņš did not reside in Cyprus, notice of the proceedings and summons to appear had to be served on the applicants by Latvian authorities. There is some factual disagreement regarding the serving of this application (see para 19 of the judgment). It seems as if the summons slip had been signed, but the signature on the slip did not appear to correspond to the applicant’s name. Nevertheless, the Cypriot court ruled in Avotiņš’ absence on 24 May 2004, and ordered him to pay F.H. Ltd. 100 000 US dollar plus interest. According to the Cypriot judgment, the applicant had been duly informed of the hearing, but had not attended.

In February 2015, F.H. Ltd. applied to the Riga City District Court seeking recognition and enforcement of the Cypriot judgment. This request was first rejected, due to discrepancies regarding the postal address of Mr. Avotiņš. This rejection was appealed by F.H. Ltd. to the Riga Regional Court, which quashed the District Court’s rejection. Upon reexamination of F.H. Ltd.’s application by the District Court the application was granted in full – without the parties being present.

According to Avotiņš, it was not until 15 June 2016 that he became aware of the Cypriot judgment and the District Court order for its enforcement. He contacted the District Court immediately and acquainted himself with the Cypriot judgment and the Latvian order. Interestingly, before the ECtHR the Latvian authorities did not dispute these facts.

This is where things get complex (see paras 27-35 of the judgment), and I can for the sake of brevity only give a brief summary of the facts from this point out. First, Avotiņš did not attempt to appeal the Cypriot judgment. However, he decided to appeal the Latvian enforcement order on the grounds that it violated the Brussels I regulation (concerning jurisdiction over and recognition of civil judgments), which is part of EU law, as well as rules of Latvian civil procedure. Second, the Regional Court in October 2006 accepted Avotiņš’ submissions, and quashed the enforcement order. The District Court seemed to find that the Cypriot judgment was not enforceable due to the lack of the certificate referred to in Article 54 of the Brussels I regulation. Third, F.H. Ltd. appealed the October 2006 order of the Regional Court to the Supreme Court. At the start of the Supreme Court hearing in January 2007 F.H. Ltd. submitted copies of inter alia the certificate referred to in Article 54 of the Brussels I regulation. Later the same day the Latvian Supreme Court quashed the October 2006 order of the Regional Court, and ordered the recognition and enforcement of the Cypriot judgment. In doing so, the Supreme Court held that under article 36 of the Brussels I regulation a foreign judgment “may under no circumstances be reviewed as to its substance” (para 34 of the judgment, citing the January 2007 judgment of the Latvian supreme court).

THE CASE BEFORE THE ECTHR

The applications

Avotiņš then filed complaints against Latvia and Cyprus before the ECtHR. The application against Cyprus was rejected, due to being too late (see para 97 of the judgment, referring to a ECtHR decision of 3 March 2010). However, his application against Latvia was filed within the time-limits.

In his application against Latvia, Avotiņš argued that the Latvian Supreme court had infringed his right to a fair hearing, by recognizing and enforcing the Cypriot judgment which in his view was defective as it had been given in breach of his right to a defence. Several third parties intervened in the latter case, including the European Commission, which provided a lengthy submission on the applicability of the Bosphorus presumption to the case and the compatibility of Brussels I regulation with ECHR article 6 (the right to a fair trial).

The ECtHR’s introductory remarks

The judgment of the ECtHR, which was adopted by a majority of sixteen votes to one (with two judges appending a joint concurring opinion), opens with the premise that ECHR article 6 is applicable to the execution of foreign final judgments. According to the Court (para 98 of the judgment):

a decision to enforce a foreign judgment cannot be regarded as compatible with the requirements of Article 6 § 1 of the Convention if it was taken without the unsuccessful party having been afforded any opportunity of effectively asserting a complaint as to the unfairness of the proceedings leading to that judgment, either in the State of origin or in the State addressed.

The ECtHR then noted that it had “never previously been called upon to examine observance of the guarantees of a fair hearing in the context of mutual recognition based on European Union law” (para 98). However, the ECtHR added it had “always applied the general principle” that a request for recognition and enforcement of foreign judgments cannot be granted without the court examining the request “first conducting some measure of review of [the foreign] judgment in light of the guarantees of a fair hearing”.

Does the Bosphorus presumption apply?

Following these initial remarks, the ECtHR went on to consider whether and to what extent the Bosphorus presumption was applicable to the case. It did so over ten pages (paras 101-127), making this probably the longest treatment of this famed presumption by the ECtHR to day.

First, on the scope of the Bosphorus presumption, the ECtHR confirmed the principles laid down in its previous by referring to the summary of that case-law in paras 102-104 of its judgment in the Michaud case. From that case-law it follows that the substantive protection of human rights in the area of EU law that the Brussels I regulation belongs to is equivalent. In particular, this is confirmed by article 52(3) of the EU’s Charter of Fundamental Rights, which stays that the Charter has to be interpreted consistently with ECHR rights that correspond to it. The fundamental condition for applying the Bosphorus presumption was thus fulfilled.

Next, it follows from the ECtHR’s case-law that two further conditions must be satisfied for the Bosphorus presumption to apply. These are (1) the “absence of any margin of manouvre” on the part of the domestic authorities implementing an EU law obligation, and (2) the “deployment of the full potential of the supervisory mechanism” provided for under EU law. Applying these principles to the present case, the ECtHR first found that the Latvian Supreme Court did in fact not have any margin of manoeuvre in this case. In coming to this conclusion, the ECtHR pointed to the CJEU’s case-law on the relevant provisions of the Brussels I regulation, which “did not confer any discretion on the court from which the declaration of enforceability was sought” (para 106 i.f.).

The ECtHR’s discussion of the second condition, the deployment of the full potential of the supervisory mechanisms under EU law, was much more extensive. The Latvian Supreme Court had not requested a preliminary ruling from the CJEU regarding the interpretation of the relevant provisions of the Brussels I regulation. However, this was not decisive for the ECtHR, which stated (para 109):

this second condition should be applied without excessive formalism and taking into account the specific features of the supervisory mechanism in question. It considers that it would serve no useful purpose to make the implementation of the Bosphorus presumption subject to a requirement for the domestic court to request a ruling from the CJEU in all cases without exception […].

Following this statement, the ECtHR referred to cases where it has found that ECHR article 6 require domestic apex courts to give reasons when they refuse to refer questions to the CJEU for a preliminary ruling, “in light of the exceptions provided for by the case-law of the CJEU” (para 110). However, the ECtHR was quick to add that the review conducted in those cases differs from that in the present case, where “it examines the decision not to request a preliminary ruling as part of its overall assessment of the degree of protection of fundamental rights afforded by European Union law” (para 110).

For those reasons, the ECtHR found that “whether the fact that the domestic court hearing the case did not request a preliminary ruling […] is apt to preclude the application” of the Bosphorus presumption “should be assessed in light of the specific circumstances in each case” (para 111). It then pointed to the relevant circumstances at play in the present case: Avotiņš “did not advance any specific argument concerning the interpretation” of the relevant provisions of the Brussels I regulation, and he did not request that the Latvian Supreme Court should ask the CJEU for a preliminary ruling (para 111). Since there was thus norequest for a preliminary ruling, the fact that the Latvian Supreme Court did not ask for a preliminary ruling was not “a decisive factor” (para 111). Consequently, the ECtHR found that also the second condition for the application of theBosphorus presumption was satisfied.

Was the protection of ECHR rights “manifestly deficient”?

A finding that the Bosphorus presumption applies is not the end of it, however, since that presumption can be rebutted if the protection of the rights laid down in the ECHR was “manifestly deficient” in the present case (para 112). In the opening paragraph of this part of the judgment, the ECtHR points to the fact that the Brussels I regulation is based on the principle of mutual trust, and affirmed the importance of this principle in EU law (para 113):

The Court is mindful of the importance of the mutual recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require.

Nevertheless, the ECtHR soon went on to stress that the “methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67(1) of the TFEU” (para 114). This statement was immediately followed by some key critical remarks (para 114, emphasis added):

However, it is apparent that the aim of effectiveness pursued by some of the methods used results in the review of the observance of fundamental rights being tightly regulated or even limited. Hence, the CJEU stated recently in Opinion 2/13 that “when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that …, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU” […]. Limiting to exceptional cases the power of the State in which recognition is sought to review the observance of fundamental rights by the State of origin of the judgment could, in practice, run counter to the requirement imposed by the Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient.

By thus requiring domestic courts to presume the observance of fundamental rights by other member states, as the EU law principle of mutual trust requires, the domestic courts are “deprived of […] discretion in the matter, leading to automatic application of the Bosphorus presumption” (para 115). Although it is a bit difficult to discern exactly what the ECtHR is alluding to here, it is hard to disagree that the nature of the mutual trust principle creates a paradoxical situation (para 115 i.f.); a twofold limitation of the domestic court’s review of the observance of fundamental rights, due to the combined effect of the presumption on which mutual recognition is founded and the Bosphorus presumption of equivalent protection.

However, despite these apparent limitations on domestic courts when the principle of mutual trust is at play, the ECHR, which is a “constitutional instrument of European public order”, nevertheless requires of them to ensure that there is no manifest deficiencies (para 116, emphasis added):

"Accordingly, the Court must satisfy itself […] that the mutual recognition mechanisms do not leave any gap or particular situation which would render the protection of the human rights guaranteed by the Convention manifestly deficient. In doing so it takes into account, in a spirit of complementarity, the manner in which these mechanisms operate and in particular the aim of effectiveness which they pursue. Nevertheless, it must verify that the principle of mutual recognition is not applied automatically and mechanically […] to the detriment of fundamental rights – which, the CJEU has also stressed, must be observed in this context […]. In this spirit, where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law."

The test laid down in the final sentence of the quoted paragraph is a tough one. It is therefore no surprise that Mr. Avotiņš was unable to meet its criteria.

What is more surprising, though, is how close he got to doing so. Although the ECtHR found the system of mutual recognition in the Brussels I regulation to be generally compatible with ECHR article 6 (paras 117-119), the ECtHR was skeptical about the Latvian Supreme Court’s interpretation and application of that regulation. Avotiņš had, as mentioned above, argued that the application for recognition of the Cypriot judgment should have been refused. According to the ECtHR he “raised cogent arguments in the Latvian courts alleging the existence of a procedural defect which, a priori, was contrary to [ECHR article 6] and precluded the enforcement of the Cypriot judgment in Latvia”. (para 120 i.f., emphasis added)

Moreover, the ECtHR found that the Latvian Supreme Court applied provisions of the Brussels I regulation that provided for exceptions to the obligation of mutual recognition too mechanically. The details here are quite technical, and concern the determination of the burden of proof – an issue that is not governed by EU law. In its concluding appraisal of the Latvian Supreme Court’s approach, the ECtHR stated (para 121): 'This approach, which reflects a literal and automatic application of Article 34(2) of the Brussels I Regulation, could in theory lead to a finding that the protection afforded was manifestly deficient such that the presumption of equivalent protection of the rights of the defence guaranteed by Article 6 § 1 is rebutted.'

This is as close to a finding of “manifest deficiency” as we have ever gotten in the ECtHR’s case-law – more on that later – but again the specific circumstances of the case came to the rescue. According to Cypriot law Avotiņš had a “perfectly realistic opportunity” of appealing the seemingly final judgment (para 122). That the applicant was unaware of this opportunity did not matter, as he when entering into a loan agreement should have “ensured that he was familiar with the manner in which possible proceedings would be conducted before Cypriot courts” (para 124).

Consequently, the judgment fizzles out with a finding that the protection of fundamental rights was not manifestly deficient, in the specific circumstance of the present case (para 125).

COMMENTS

This judgment is notable for at least three reasons. First, it is notable for simple fact that it is the first time the Grand Chamber applies the Bosphorus presumption since Opinion 2/13. The judgment confirms that the presumption is still alive and well, as one could probably expect despite some murmuring from the ECtHR president.

Second, it is notable for being the first case where the ECtHR goes right up to the edge of finding that a “manifest deficiency” in the protection of fundamental rights has occurred, but then backing off at the last second because of a specific feature of the case at hand. As a side note, though, the ECtHR’s reasoning is less clear than one could have hoped for here. Since the burden of proof seems to be key to the outcome of the Latvian Supreme Court’s judgment, and this is an issue that is not regulated by EU law, one might have argued that the Latvian Supreme Court did in fact have some “margin of manoeuvre”. It seems as if it could have complied with both the obligation of mutual recognition and ECHR article 6 by modifying the Latvian rules on the burden of proof. The reason for the lack of clarity on the part of the ECtHR here may be caused by opaqueness of the Latvian Supreme Court’s reasoning; it “tacitly presumed either that the burden of proof laid with [Avotiņš] or that [a remedy against the Cypriot judgment] had in fact been available to the applicant” (para 121).

Third, the case is notable for being the first where Bosphorus presumption takes the principle of mutual trust head on. Particularly because that principle has been elevated to constitutional status by the CJEU over the last couple of years – with Opinion 2/13 as a major catalyst (see, particularly, Opinion 2/13 paras 191-194). The ECtHR’s judgment is wary of the dangers of mechanical application of mutual trust obligations, and reaffirms the principles laid down in Bosphorus. Despite some critical comments, my best guess is that the CJEU will see this judgment as something of an olive branch from the ECtHR. From the CJEU’s perspective the case is indeed welcome, as cases concerning the Dublin Regulation (e.g. M.S.S. v. Belgium and Greece), where the ECtHR have found that EU Member States violated ECHR article 3 by sending asylum seekers back to the first EU country they entered, were not been well received. However, one must not forget that there are important legal differences between cases such asM.S.S. and the present case of Avotiņš. Notably, the Dublin regulation does not – despite myths to the contrary – contain any obligation to send asylum seekers back to the first EU country they entered. In Avotiņš the situation is markedly different: there is seemingly a clear obligation on the Latvian authorities to recognize and enforce the Cypriot judgment. Although, admittedly, the ECtHR’s unclear reasoning concerning the Latvian rules on burden of proof makes this distinction a bit less clear.

Barnard & Peers: chapter 9

JHA4: chapter II:8

Photo credit: ukhumanrightsblog.com

*Reblogged with permission from the Øby-kanalen blog

Standing up for children? The Directive on procedural safeguards for children suspected or accused in criminal proceedings

If we don't stand up for children, then we don't stand for much.

Marian Wright Edelman

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

Effective human rights protection is fundamental to any concept of fairness in the criminal justice system. Fairness, however, is relative: it may require different levels of protection in different circumstances.

Children require special measures of protection to take account of their particular vulnerability and needs (UN CRC Committee, General Comment 10, para 10). International standards confirm state obligations in this regard (e.g. UN Convention on the Rights of the Child (CRC), UN Standard Minimum Rules for the Administration of Juvenile Justice, the Council of Europe Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.). The need for extra protection has also been confirmed by the ECtHR which has stated that the right to a fair trial under Article 6 requires that: “a child charged with an offence is dealt with in a manner which takes full account of his age/level of maturity and intellectual and emotional capacities and that steps are taken to promote his ability to understand and participate in the proceeding”(T v. UK, No. 24724/94, 16 December 1999, at [84]).

The Commission states that approximately 1 million children face criminal justice proceedings in the EU each year (around 12% of the total) (Commission Staff Working Document 2013). It has gathered data on child justice and its reports shows wide variability in practice and procedure between States. The EU has now agreed the text of a Directive to establish specific procedural safeguards for child suspects. This is the fifth in a series of six EU-specific standards, all in the form of Directives, which have been agreed under a Roadmap for strengthening the procedural rights in criminal proceedings (on the fourth measure, on presumption of innocence, see discussion here; on the sixth proposal, on legal aid, see discussion here). The Directives attempt to promote consistency in procedural protection within the criminal justice systems of EU Member States. Measure E of the Roadmap requires special safeguards to be created for vulnerable suspects. A Recommendation setting out procedural safeguards for vulnerable persons has already been published. This post deals with the recently agreed Directive on child suspects.

The Directive

The Directive is a lengthy and rather complex document with 39 Recitals and 25 operative Articles. The text has now been agreed subject to reservations by Romania (in relation Article 2(3) and Article 9 (1)) and by Poland (in relation to Article 6(8) (b)). Ireland, the UK and Denmark are not participating in the instrument. Member States will have three years to transpose the Directive from the date of its entry into force (Article 23). [Update; the Directive was officially adopted in April 2016].

The Directive’s purpose is “to establish procedural safeguards to ensure that children who are suspected or accused in criminal proceedings are able to understand and follow those proceedings, to enable such children to exercise their right to a fair trial and to prevent re-offending by children and foster their social integration” (Recital 1). Children already benefit from all the human rights guarantees available to adults but the Directive notes that “experience has shown that this in itself does not always provide a sufficient degree of trust in the criminal justice systems of other Member States” (Recital 3). The ECHR remains the baseline for any assessment of the efficacy of new standards. Recital 35 notes that a “higher level of protection should not constitute an obstacle to the mutual recognition of judicial decisions that those minimum rules are designed to facilitate. The level of protection should never fall below the standards provided by the Charter or by the ECHR, as interpreted in the case law of the Court of Justice of the European Union and the European Court of Human Rights.”

Legislation which promotes children’s rights is welcome. However, to be of genuine value, a separate document for child suspects should add to and build on existing standards in a child specific way. It must also address the obstacles which prevent current standards working: it must prioritise the best interests of the child and remove any vagueness and discretion which may facilitate non-compliance. Fundamentally, it must also be effectively implemented in practice. This post will consider some of the key elements of the Directive. It will conclude that the picture is not entirely rosy.

Scope

Article 3 defines a “child” as “a person below the age of 18 years”.  The relevant point at which age is assessed is the age at which the individual becomes subject to proceedings (Recitals 8 and 9) rather than the age at the time of the offence. In the case of uncertainty, there is a presumption that the person is a child. Under Article 2(3), the Directive also applies where a child comes of age during proceedings but only where the application of the Directive, or some of its provisions, “is appropriate in the light of all the circumstances of the case, including the maturity and vulnerability of the person concerned”. Even then. however, Member States may decide that this Directive does not apply when the person reaches 21. The Directive simply “encourages” Member States to apply the procedural safeguards where the person is older than 18 and below 21. The UN Committee on the CRC has stated in General Comment 10 that “every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice”. It is very disappointing that the Directive fails to follow this approach.

The Directive lays down “minimum rules” for children in criminal and in European Arrest Warrant (EAW) proceedings (Article 1). It does not affect national rules determining the age of criminal responsibility (Article 2(5)). It applies from the time children are suspected or accused in criminal proceedings until the final determination of the case including sentencing and appeal (Article 2 (1)).  The Directive also applies to children who are not suspects or accused persons but who, in the course of questioning by the police or by another law enforcement authority, become so (Article 2(4)). This mirrors Article 2(3) of the Directive on the right of access to a lawyer.

Article 17 confirms that the rights set out in Articles 4, 5, 6, 8, 10, 11, 12, 13, 14, 15 and 18 of the Directive also apply to EAW proceedings from the time of arrest in the executing Member State (Article 17). It should also be remembered that, although the Directive seeks to give children rights in EAW proceedings, Article 3(3) of the Framework Decision on the EAW actually provides a ground for mandatory non-execution of the EAW where a person, “owing to his age” cannot be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State.

Another concern is that the Directive restricts its application in respect of minor offences (Recitals 11a-11c). Article 2(5a) confirms that, in respect of minor offences, where Member States’ law provides for a sanction by to be imposed by “an authority other than a court having jurisdiction in criminal matters” and the imposition of such a sanction may be appealed or referred to such a court or where deprivation of liberty cannot be imposed as a sanction, the Directive only applies to the proceedings before a court having jurisdiction in criminal matters. A ‘minor’ offence is not defined and there is no penalty threshold. In C-60/12 Baláž, 14 November 2013 confirmed that ‘having jurisdiction in criminal matters’ means that a court “must apply a procedure which satisfies the essential characteristics of criminal procedure, without, however, it being necessary for that court to have jurisdiction in criminal matters alone” (at [36]). This is “an autonomous concept of Union law” (at [42]).

It is disappointing that the Directive is only guaranteed to “fully apply” where a child is deprived of liberty irrespective of the stage of the criminal proceedings. The restrictions on minor offences mirror those in other Directives (Article 1 (3) of the Directive on the Right to Interpretation and Translation, Article 2(2) of the Directive of the Right to Information, and Article 2 (4) of the Directive on the Right of Access to a Lawyer). But there is no justification for the imposition of this clause and no explanation of how it sits with current ECHR obligations. In terms of the exemption for ‘minor offences’, the ECtHR does not distinguish between different types of offences: the protection afforded by Article 6 is engaged as soon as a ‘criminal charge’ is brought against an individual. Engel and Others v The Netherlands No. 5100/71, 8 June 1976 confirms that, when determining whether a ‘criminal charge’ exists, specific criteria will be considered: (a) the classification of the offence under the domestic legal system; (b) the nature of the offence; and (c) the potential nature and severity of the penalty. Even a seemingly minor offence may have serious consequences for the child. It is disappointing to apply this unnecessarily restrictive approach to a document designed to protect vulnerable suspects.

Rights

The Directive sets out a series of rights.

Right to information: Article 4 creates a duty to inform child suspects “promptly” about their rights in Directive of the Right to Information and about general aspects of the conduct of the proceedings. The Letter of Rights required by Directive of the Right to Information should also set out a child’s rights under this Directive (Article 4(2)).

Article 4 distinguishes between those rights in the Directive which children are to be informed about “promptly” and those they are to be informed about at the at the “earliest appropriate stage in the proceedings”. There is no justification for such a distinction. Further, worryingly, under Article 4 (1a), this information can be given orally rather than in writing which undermines the protection. There is no requirement that either an appropriate adult or lawyer is present when this information is handed over or that the information is given in a child-friendly form (the Directive merely talks of “simple and accessible language”). The  Council of Europe Guidelines on child friendly justice require information and advice to be provided in a manner adapted to their age and maturity, in a language which they can understand and which is gender- and culture-sensitive. This is particularly important when the age of criminal responsibility varies wildly within the EU (e.g. it is 10 in England and 15 in Denmark).  Handing information to a child is no guarantee they will be able to understand or use it and a process to verify the child’s comprehension should have been established.

Right of the child to have the holder of parental responsibility informed: Article 3 defines the “holder of parental responsibility” (PR) to mean “any person having parental responsibility over a child”. Parental responsibility means “all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term includes rights of custody and rights of access.”

Under Article 5, the state must ensure that the holder of parental responsibility is provided “as soon as possible” with the information that the child receives in accordance with Article 4 (see also Recitals 15 and 15a). However, Article 5(2), provides specific grounds for using another appropriate adult, albeit one nominated by the child and accepted as such by the competent authority. The grounds include:  if (a) it would be contrary to the best interests of the child to provide it to the holder of PR or (b) no holder of parental responsibility can be reached after reasonable efforts have been made to do so or his or her identity is unknown or (c) because, on the basis of objective and factual circumstances, providing information to the holder of PR could substantially jeopardise the criminal proceedings to provide it to the holder of PR.

Further, if the child has not nominated another appropriate adult, or if this nominated adult is not acceptable to the competent authority, “taking into account the best interests of the child”, the competent authorities may provide the information to another person, including someone from an authority or responsible for the protection or welfare of children. As soon as any of these grounds cease to exist, the information should be provided to the holder of PR. Provisions which too readily allow the state to appoint the adult supporting the child are of concern.

Right to assistance by a lawyer: The ECtHR has confirmed that, in order for the right to a fair trial to remain “practical and effective”, access to a lawyer should be provided from the first police interrogation (Salduz v. Turkey, No. 36391/02, 27 November 2008). Suspects are particularly vulnerable at the investigation stage and evidence gathered may determine the outcome of the case. The right of access to legal assistance is particularly important for vulnerable suspect such as minors (see for example, S.C. v. the United Kingdom, No. 60958/00, 15 June 2004).

Article 6 re-affirms the right of access to a lawyer. It also confirms that the right is about exercising the “rights of defence effectively” (Article 1a.). Under Article 6(2), this assistance should occur “without undue delay once [Member States] are made aware that they are suspected or accused of having committed a criminal offence” from whatever point is earliest: (a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.

Under Article 6(3) (see also Recital 16a), assistance “includes” (so is not limited to): the right to meet in private and communicate with the lawyer representing them. The confidentiality of communications between the child and their lawyer is protected under Article 6(4) (see also Recitals 17c and 17d); the right to be assisted by a lawyer when they are questioned, and that “the lawyer can participate effectively during questioning” (as with other Directives this participation is “shall be in accordance with procedures under national law); and the right to be assisted by a lawyer during investigative or evidence-gathering act such as: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of a crime.

However, Recital 16b also sets out the circumstances in which the right to a lawyer does not arise, e.g. including verifying the child’s identity, whether they have a weapon or taking fingerprints or photographs. These acts potentially carry significant consequences and it is unhelpful to have limited the scope in this way.

Further, despite the importance of this right, a series of derogations and discretionary provisions potentially undercut the protection. For example, there is a proportionality clause in Article 6 (5) (see also Recital 17) which permits Member States, provided that this is in conformity with the right to a fair trial, to derogate from the obligations set out in Article 6(2) where assistance by a lawyer “is not proportionate in the light of the circumstances of the case, taking into account the seriousness of the offence, the complexity of the case and the measures that could be  taken in respect of the alleged offence, it being understood that the best interests of the child shall always be a primary consideration”. Further, under Article 6(8), “in exceptional circumstances and only at the pre-trial stage”, Member States may temporarily derogate from the duty to provide the assistance of a lawyer “to the extent justified in the light of the particular circumstances of the case” on one of the following “compelling reasons”: (a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings in relation to a serious offence. In applying this paragraph “the best interests of the child” must be taken into account. This can only be decided on “a case-by-case basis” either by a judicial authority or other competent authority on condition that the decision can be submitted to judicial review.

Finally, whereas the Directive on the right to a lawyer permits suspects or accused persons to waive their right, the original Commission proposal prohibited waiver in the case of children. It is disappointing this has been dropped. Ensuring every child gets legal representation would have been an important step forward in ensuring rights are protected.

Right to an individual assessment: Article 7 requires Member States to assess children individually to ensure that their specific needs concerning protection, education, training and social integration are taken into account. The costs are generally to be met by the state (Article 21).  The assessment shall “take into account the personality and maturity of the child, their economic, social and family background, as well as any specific vulnerabilities of the child” (Article 7(2) and Recital 19a). The nature and extent of the assessment will depend on the circumstances of the case (Article 7 (2a)). The assessment should “be carried out with close involvement of the child” and be conducted by “qualified personnel, following, as far as possible, a multidisciplinary approach and involving, where appropriate, the holder of parental responsibility or another appropriate adult and/or specialist professional” (Article 7 (5)). If circumstances change, an assessment may be updated (Article 7(6)).

The individual assessment, which should take place at the earliest appropriate stage of the proceedings and, before indictment (Article 7(4a)), will note information which might be of use by the competent authorities when making decisions about the child.  However, the absence of an early individual assessment will not stop an indictment being presented if this “is in the best interests of the child” provided that the individual assessment is available at the beginning of the trial (Article 7(4b) and Recital 19d). Additionally, derogation from this provision is possible if “warranted by the circumstances of the case, and provided that this is compatible with the child's best interests” (Article 7 (7) and Recital 19e). Again, the creation of rule accompanied by exceptions may compromise consistency.

Right to a medical examination: Children who are deprived of liberty have the right to a medical examination without undue delay (Article 8 and Recital 20). One concern here is that the Directive uses the term ‘undue delay’ rather than requiring the examination to be done promptly (compare this with that set out in in General Comment 10). The examination can be required by the competent authorities or by (a) the child, (b) the holder of PR responsibility or another appropriate adult as referred to in Article 5; or (c) the child’s lawyer (Article 8(2). The costs are generally to be met by the state (Article 21).

The examination is to assess the general mental and physical health of the child. The examination should be as non-invasive as possible and carried out by a physician or another qualified professional. It will be recorded in writing (Article 8 (3)) and may lead to medical assistance or may help determine the capacity of the child to face questioning, other investigative or evidence gathering acts or any measures taken or envisaged against the child (Article 8(1a)). It can be repeated where required (Article 8(4)).

The Directive should have guaranteed a right of access to medical treatment if directed by a doctor.

The restriction of this protection to those who are deprived of their liberty is a concern as medical examinations may be important to any child facing criminal proceedings. Deprivation of liberty is not defined but presumably is intended to relate solely to those detained in prison. In the juvenile justice system, children may also be obliged to reside with foster carers or have their liberty restricted in other very significant ways.  The ECtHR has said that the “difference between deprivation of and restriction upon liberty is … merely one of degree or intensity, and not one of nature or substance” Guzzardi v Italy. No. 7367/76, 6 November 1980. This issue is not addressed in the Directive.

Audio-visual recording of questioning: Member States will have to ensure that questioning of children by police or other law enforcement authorities is audio-visually recorded but only “when this is proportionate in the circumstances of the case, taking into account inter alia whether a lawyer is present or not and whether the child is deprived of liberty or not, it being understood that the child's best interests shall always be a primary consideration” (Article 9 (1) and Recital 21a).  The proportionality condition needlessly weakens this protection by introducing an unacceptably wide scope of discretion and consequently potential variability.

If there is no audio-visually recording, questioning is to be recorded in another appropriate manner, and including “by making written minutes, which are duly verified” (Article 9(2)). By whom? The child? This should have been more clearly set out.

Limitation of deprivation of liberty: Article 10 is a welcome re-confirmation that any “deprivation of liberty of a child at any stage of the proceedings shall be for the shortest appropriate period of time” and that it should be a “last resort”. It also confirms that the “the age and individual situation of the child, and of the particular circumstances of the case” should be taken into account and sets out the need for a reasoned decision and periodic review.  However, these really are the some of the most basic minimum requirements of lawful practice. Article 10 does not define deprivation of liberty, nor does it restate or refer to the clear requirements attached to any deprivation of liberty established by Article 5 ECHR and its case law which are also reflected in Article 48 of the EU Charter not least those concerning the need for prompt determination of the decision to detain.

Article 11 and Recital 25a confirm that competent authorities shall have recourse to alternative measures instead of detention but, again, this requirement is undermined by the requirement that this need only happen “where possible”.

Specific treatment in the case of deprivation of liberty: Article 12 details minimum requirements for children who are detained. They must be held separately from adults “unless it is considered in the child's best interest not to do so” (in accordance with Article 37(c) of the UN CRC). In police custody, there is an additional exception as children need not be held separately if “in exceptional circumstances, it is not possible in practice to do so, provided that this is compatible with the child's best interests” (Article 12 (1a) and Recital 26a). Additionally, Member States have a discretion to hold children separately when they reach the age of 18 years but they must still take into account the child’s individual circumstances as well as the best interests of children who are detained with them (Article 12(2)). However, General Comment 10 confirms that the ‘best interests’ test here should be interpreted narrowly and that “the child’s best interests” does not mean for the convenience of the States parties”. This requirement should have been replicated on the face of the Directive.

When in detention, Article 12(4) and Recitals 26c and 26d require Member States to take appropriate measures to: (a) ensure and preserve their health and their physical and mental development; (b) ensure their right to education and training, including for children with physical, sensory and learning disabilities; (c) ensure the effective and regular exercise of their right to family life; (d) ensure access to programmes that foster their development and their future integration into society; and (e) ensure respect for their freedom of religion or belief. These measures do not go far enough and do not match the standards set out in General Comment 10, paras. 85-89.

Children are also entitled to meet the holder of PR as soon as possible but only “where such meeting is compatible with investigative and operational requirements” and only where the provisions of Article 5 relating to the designation of another appropriate adult have not been applied (Article 12(5)). It is deeply disappointing that operational demands may be placed above a child’s right to see his/her parent/carer.

Timely and diligent treatment of cases: Article 13 requires that all appropriate measures should be taken to ensure that criminal proceedings involving children “are treated as a matter of urgency and with due diligence”. This is in line with ECtHR case law on the right to a trial within a reasonable time. Under Article 18a an effective remedy under national law should be provided in the event of a breach of Directive rights. 

The requirement that appropriate measures should also be taken to ensure that children are “always treated in a manner which protects their dignity and which is appropriate to their age, their special needs, their maturity and level of understanding, and bearing in mind any communication difficulties they may have” (Article 13 (2)) is welcome.

Right to protection of privacy: Article 14 protects the privacy of children during criminal proceedings. Court hearings involving children should ordinarily be held in the absence of the public, or courts or judges to decide to do so. This reflects current human rights standards in Article 6 ECHR (e.g., see T v. UK, No. 24724/94, 16 December 1999) and Article 47 of the EU Charter.

Right of the child to be accompanied by the holder of parental responsibility during the proceedings: Article 15 and Recitals 29 and 29 confirm the right of the child to be accompanied by the holder of PR during court hearings. This can be limited on the same conditions as Article 5(2). Article 15 similarly permits the state to appoint an appropriate adult where an alternative is not acceptable.

Children also have the right to be accompanied during other stages of the proceedings but only where the state considers that: (a) it is in the interest of the child to be accompanied by that person; and (b) the presence of that person will not prejudice the criminal proceedings. The state is given total discretion and the Directive should have been far clearer on a child’s rights in this regard.

Right of children to appear in person at, and participate in, their trial: Article 16 confirms a child’s right to be present at, and participate effectively in, their own trial. This includes giving them the opportunity to be heard and to express their views. If a child is not present at their trial, the Directive provides the right to a new trial, or another legal remedy, in accordance with and under the conditions set out in Directive on the presumption of innocence. The requirements of Article 6 ECHR and Articles 47 and 48 of the EU Charter would require nothing less.

Right to legal aid: Article 18 requires that national law in relation to legal aid guarantees the effective exercise of the right to be assisted by a lawyer as referred to in Article 6. The reference to national law does not help promote standards in view of the widespread inconsistency and variability (leading to the Commission’s Recommendation on the issue). The interests of justice test indicates that free legal assistance may be required for vulnerable groups such as minors (Quaranta v. Switzerland, No. 12744/87, 24 May 1991, para. 35. This could have been clearly restated.

Other provisions

Training: Article 19 deals with training for law enforcement authorities, staff of detention facilities, the judiciary, prosecutors and lawyers. This is a welcome and potentially practical step and should be supported by further EU wide guidance drawn from universal standards.

Data recording: Article 20 requires that Member States send data to the Commission five years after the Directive enters into force (and every three years thereafter) showing how the Directive has been implemented. The absence of reliable data on children’s rights in criminal proceedings has previously been noted by the Commission (see the report here) so this is a welcome obligation.

Conclusion

Clear standards protecting children’s rights are welcome but, based on the summary above, I have the following general concerns:

1.      The failure to mainstream these protections: they are placed in a separate document which will need to be compared with others. Should, they not run like a thread through all the standards? Developing safeguards incrementally may invite inconsistency.

2.      While some of the Directive’s provisions are new and child-specific, others seem to be little more than a reiteration (and sometimes a partial one) of the minimum requirements which exists in relation to all defendants.

3.      The Directive does not always reflect international standards of protection.

4.      The Directive is made potentially less progressive by a series of exceptional and discretionary provisions which may facilitate variable practice.

Additionally, in reality, to make a difference any new standards must actually be enforced in practice. We must ask: will these standards work where others have failed?

Barnard & Peers: chapter 25

JHA4: chapter II.4

Photo credit: http://chelseaclockwallpaper.blogspot.co.uk/2012/12/juvenile-justice-system.html