Is the respect of minimum standard in criminal procedures utopia?

 The adoption of EU legislation on procedural rights in criminal procedures is at stake since a long time and despite a number of calls from the European Parliament, no legislative instrument is yet in place.

As a consequence, suspects and defendants have no other protection than the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (all EU Member States are parties to the ECHR) and, after the entry into force of the Treaty of Lisbon, the Charter of fundamental Rights of the European Union.

Works in view of the adoption of a legal instrument in this field started in 2003 with the publication, by the European Commission, of a Green Paper.

Due to the positive feedback received, in 2004 the European Commission tabled a proposal for a framework decision to set common minimum standards for procedural safeguards (COM(2004)0328).

In 2007, after having largely watered down the Commission’s proposal without reaching any result, the Council took note of the impossibility of reaching a consensus on it. Hence, a number of Member States called to limit the application of such an instrument to cross-boarder cases or to cases in which an European Arrest Warrant (EAW) was issued.

In July 2009 the European Commission tabled a new proposal for a framework decision (COM(2009)338) on procedural rights. The proposal was extremely limited in scope covering only the rights to interpretation and translation of all “essential” documents. T

he Swedish Presidency therefore proposed the framework decision to be accompanied by a Council Resolution providing for further measures on training for interpreters and translators, accreditation/certification of interpreters and translators as well as their mandatory registration.

The Swedish Presidency presented also a draft Council Resolution on a “Roadmap” for strengthening procedural rights of suspected and accused persons in criminal proceedings.

The roadmap was adopted at the Justice and Home Affairs Council held on 23 October 2009 and a reference to it is contained in the Stockholm Programme. It covers the following measures:

A: Translation and interpretation

B: Information on rights and information about the charges

C: Legal advice and legal aid

D: Communication with relatives, employers and consular authorities

E: Special safeguards for vulnerable suspected or accused persons

F: A Green Paper on pre-trial detention .

In December 2009 the Treaty of Lisbon entered into force and all pending legislative procedures, including this one, could not come to their end.

Following to the impossibility to adopt the Framework Decision, a group of 13 Member States (BE, DE, ES, EE, FR, HU, IT, LU, AT, PT, RO, FI and SE) tabled an Initiative for the adoption of a Directive on the rights to interpretation and translation in criminal proceedings under the new legal framework provided by the Treaty of Lisbon.

The Initiative is based on the text agreed at Council level in October 2009 and will be negotiated, under the ordinary legislative procedure, under Spanish Presidency.

Will this time the EU manage to provide itself with a legal instrument ensuring to suspects and defendants minimum procedural rights in criminal proceedings?

C.G.