A.T. v Luxembourg: the start of the EU-ECHR story on criminal defence rights

Alex Tinsley,  Legal & Policy Officer (Head of EU Office) at Fair Trials, based in Brussels. Twitter: @AlexLouisT

On 9 April 2015, the European Court of Human Rights (‘ECtHR’) gave judgment in A.T. v Luxembourg. The judgment, which will become final unless referred to the Grand Chamber, in finding a violation of Article 6 of the European Convention on Human Rights (ECHR), develops the principles established in the Salduz v Turkey. At the invitation of Fair Trials International, third party intervener, it also takes into account, for the first time, Directive 2013/48/EU on access to a lawyer in criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator of future convergence in this area.

Background

The applicant, A.T. was questioned by police following surrender under a European Arrest Warrant (‘EAW’) (as to the cross-border aspect, see the post-script). On arrival, he demanded a lawyer. Police gave information (it is unclear what) which led him to accept to be questioned without one. He denied the offences. He was then questioned again before the investigating judge, with a lawyer present but (a) without having had the chance to talk with that lawyer beforehand and (b) without the lawyer having had sight of the case file prior to that questioning; again, he denied the offences.

A.T. argued that his defence rights had been breached as he had been denied access to a lawyer. The appeal court, and then the Court of Cassation, rejected this, essentially finding that he had agreed to be questioned without a lawyer and that no obligation arose to remedy any prejudice caused. With local remedies exhausted, A.T. applied to the ECtHR arguing a violation of Article 6 ECHR.

The legal territory: the Salduzprinciple

The case was decided by reference to the ECtHR’s 2008 judgment in Salduz v Turkey, which established that a person charged with a criminal offence has a right of access to a lawyer ‘as from the first interrogation by police’, and that the rights of the defence are irretrievably prejudiced if incriminating statements made in the absence of a lawyer are used for a conviction (para 55). There are, however, some unanswered questions about this principle, some of which are resolved here.

EU law in the mix

Salduz caused waves of litigation and reform in Europe, including in older EU Member States like the UK and France. Yet, significant problems remain in practice. This is the ECtHR’s summary of Fair Trials’ view on this in A.T. v Luxembourg: ‘many suspects encounter serious difficulties in the exercise of this right, in particular due to legal or practical restrictions on the right of access to a lawyer, a prevalence of supposed ‘waivers’ of the right whose reliability is questionable, and ineffective remedial action by the courts to repair violations’ (at 59).

With Member States required to cooperate on the basis of mutual trust, such concerns are problematic. So, in 2009, the EU adopted a ‘Roadmap’, a ste-by-step plan to adopt directives on key defence rights under the new legal basis of Article 82(2)(b) of the Treaty on the Functioning of the EU, in order to strengthen mutual trust. After Directive2010/64/EU on the right to interpretation & translation and Directive2012/13/EU on the right to information, came the Access to a Lawyer Directive(together, the ‘Roadmap Directives’), setting minimum standards on access to a lawyer.

These Directives mostly attempt to ‘codify’ ECtHR jurisprudence, but in doing so create new standards and – as for the issue at stake here – in some places may anticipate the case-law. This is significant. As Fair Trials argued in this case, the ECtHR can and does have regard to such measures when developing its case-law, so the presence of the Roadmap Directives raises significant possibility of cross-fertilisation between EU law and the ECHR. A.T. appears to be a first example of this.

The A.T. v Luxembourg judgment

You cannot waive a right that you do not have

The judgment clarifies that since there was in fact no legal right to a lawyer at the initial questioning – this was the case at the time in Luxembourg for the narrow category of persons questioned following surrender under a European Arrest Warrant (EAW) – the purported ‘waiver’ of that right was inoperative (at 71): you cannot waive an entitlement which the law does not confer upon you.

If access to a lawyer is denied, a remedy may be needed even in absence of a confession

That being established, the ECtHR found that the courts had infringed Article 6 ECHR by relying on the statements A.T. made in that context and not taking any remedial action to repair the prejudice caused by the restriction on A.T.’s right to a lawyer (at 72), e.g. excluding his statements (see 73).

It is worth noting, in that regard, that Luxembourg had argued that no violation of Article 6 arose because A.T. had denied the offences (see 55). The logic is that if you don’t confess, the absence of a lawyer does not make any difference. Fair Trials had argued for a more protective line (see 61). Relying on the Article 12 of the Access to a Lawyer Directive, which refers to ‘statements’, not simply confessions, we noted that a person might compromise themselves in other ways, e.g. saying too much or too little, speaking confusedly under pressure, damaging their credibility vis-à-vis other witnesses etc. (see the actual intervention, paragraph 41). The ECtHR followed this line, pointing out that A.T. had ‘changed his story’ during the proceedings and that his early statements, though denials of the allegations, were held against him in that way (at 72). This is a useful addition to a line of cases which had so far only dealt with mostly with total silence, flat denials or clear confessions.

Access to a lawyer includes a right to prior consultation before questioning

The judgment is, though perhaps most notable for its emphasis on the importance of a consultation between lawyer and client prior to questioning (at 86). This is a new development of the case-law, complementing Navone v. Monaco and other cases (79) establishing that there be should assistance during questioning. The legal assistance provided to A.T. during the questioning, without such a prior opportunity, was not ‘effective’ and so did not meet the requirements of Article 6 ECHR (at 89).

Roadmap aficionados will note that in so finding, the ECtHR took account of Article 3(3)(a) of the Access to a Lawyer Directive which articulates this requirement in black and white. This is the first time one of the Roadmap Directives has been referred to in the interpretation of the ECHR, and it raises questions as to possible convergence and how the ECtHR is going to react to rulings from the Court of Justice of the EU (‘CJEU’) on the Roadmap Directives (see comments below).

Access to the case file prior to questioning?

On one point, however, the ECtHR will have disappointed some people. Lawyers in Spain, France and Luxembourg in particular have been arguing for some time that legal assistance is not effective if the lawyer does not have access to the case file prior to questioning, in order to advise the client on an informed basis (more here). The A.T. case gave the ECtHR a chance to say whether such a right arose under the ECHR, and it – or this Chamber, at least – has taken a negative view.

What remains now on this point is Article 7(1) of Directive 2012/13/EU, requiring access to documents which are essential for challenging detention. The Paris bar reckons this is a key to the police case file prior to questioning (see their pleading). The conservative view, which seems closer to the text of the provision, sees this as relevant only to judicial review of detention, and it appears the ECtHR shares the view (see 80). But bearing in mind that (as in Luxembourg) the questioning may be done by a judge who also makes a first decision on detention, the broader view is credible. It seems likely that there will be further instalments in this particular discussion.

Disposal: ensure a fair (re)trial next time

Disinformation about human rights abounds, so it is worth reminding oneself what such an ECtHR judgment actually entails. A.T., accused of serious offences, does not now walk free. The ECtHR did not order his release (it cannot), or award damages. The Chamber, under ECtHR President Dean Spielmann, simply indicated that Luxembourg should give him a retrial compliant with Article 6 ECHR (97). Prosecutors had other evidence, besides the statements made without a lawyer, with which to prosecute, so their case is not lost. The retrial should simply be fair, in line with ECHR and EU norms.

Comments

Interaction between EU law and ECHR has looked unappealing of late. Not long ago, in Tarakhel v. Switzerland, found for the second time that execution of the EU’s ‘Dublin’ system for return of asylum-seekers to other Member States would infringe human rights protected by the ECHR. The CJEU, apparently miffed, then issued its alarming comments in Opinion 2/13, stating that, in obliging Member States to question each other’s compliance with human rights despite EU law obligations of mutual trust, the EU’s proposed accession to the ECHR would interfere with the EU legal order.

For 50 years, the CJEU has dealt with individuals invoking Treaty rights in order to defeat protectionist trade rules, enhance free movement and bring countries closer together in ever closer union. Now all of a sudden the countries are trying to cooperate in justice and home affairs, the individual is invoking rights to resist this, and the CJEU appears concerned. If one adopts this rationale, the issue can be confined to the cross-border sphere.

In the internal context, where cooperation interests are not at issue, a more progressive trajectory can be envisaged. When the CJEU’s Elgafaji judgment recognised that Article 15(c) of the Qualification Directive was intended to provide an additional layer of protection against refoulementfor those escaping situations of indiscriminate violence, the ECtHR quickly responded in Sufi and Elmi v. UK that it was ‘not persuaded’ the standard under Article 3 ECHR was any lower, going a step further than it had in earlier cases. One can discern an element of upward competition here.

What will happen with the Roadmap Directives remains to be seen. The point decided in A.T. v Luxembourg – that one should have a chance to talk with one’s lawyer before being questioned – appears uncontroversial and would have been adopted anyway by the ECtHR. But nevertheless, it offers an example of EU law setting a standard, which the ECtHR then finds exists in the ECtHR too. It will, in that light, be interesting to see how the CJEU will treat new questions without obvious answers in the existing-case-law of the ECtHR, and what the reaction will be from Strasbroug.

The first case on the Roadmap Directives (Case C-216/14 Covaci) is pending, and the comments in the Advocate General Bot Opinion of 7 May 2015 are interesting from that perspective: these ‘minimal rules’ should be seen as ‘irreducable’ fundamentals (32); they should be approached expansively, as strengthening defence rights will strengthen judicial cooperation (33); and, while the Roadmap Direcives respect national legal cultures, national procedures will have to ensure their useful effect or face striking down by the national courts, with the CJEU on standby to give preliminary rulings (34). His conclusions on the specific case require a separate blog post, but this proposed interpretative logic is notable: it suggests, as we notedlast year, that the counterpart to CJEU’s robust defence of mutual trust could be a robust approach to the Roadmap Directives designed to strengthen that trust. If the CJEU’s rulings are expansive, the ECtHR might then be slow to aim any lower, with consequent impact outside the EU. But here one goes further into the realm of speculation.

Of course, for anything to happen, lawyers need to put the issues before the courts. Working with the Legal Experts Advisory Panel (‘LEAP’), our pan-EU criminal law network, we offer free legal training, designed to share ideas across jurisdictions and encourage innovative litigation. The ECtHR listened to LEAP in A.T., and we can help in national cases too (see our comparative law opinions in cases before the Swedish Supreme Court (here) and Belgian Court of Cassation (here)). The idea is to participate in the developing EU-ECHR story and use it as an opportunity to improve defence rights across Europe. If you would like to get involved, contact Fair Trials’ Legal & Policy team.

Another version of this post appeared on the Fair Trials website.

Barnard & Peers: chapter 25

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Fundamental Rights and the European Public Prosecutor’s Office: an uncomfortable silence

 

 

Michiel Luchtman, Jannemieke Ouwerkerk, Marloes van Noorloos, Pim Geelhoed, Jorrit Rijpma and Louis Middelkoop are members of the Meijers Committee (www.commissie-meijers.nl/en).

The EU’s proposal for the establishment of a European Public Prosecutor’s Office (EPPO) has created quite a stir in the Member States. The EPPO would be competent to investigate and prosecute fraud with EU money (e.g. the misuse of EU funds), although there is already talk about extending its competence to terrorism and other serious crime. So far, political negotiations over the draft regulation have focused on the question why the EU is in in need of this new supranational body in the first place, and on the extent of the EU’s influence on national affairs, particularly in such a sensitive area as criminal justice.

Supposing that in the near future the European Public Prosecutor’s Office will indeed be established, more attention to the substance of the current proposal needs to be paid without delay, particularly to the protection of fundamental rights. The current proposal raises serious concerns on this matter, as it is unclear who will supervise the actions of the EPPO and how this may be done effectively.

Procedural Rights in EU criminal law

In the EU context, the question of who is responsible for the guaranteeing of procedural rights in transnational criminal law enforcement has already frequently been addressed by legislation. After all, Member States of the EU do cooperate intensively on a daily basis: think of the European arrest warrant mechanism, which enables the rapid surrender of suspects from one Member State to another. All such cooperation mechanisms contain provisions on legal protection.

The proposal to establish an EPPO takes criminal justice integration significantly further than any other instrument created thus far. The EPPO will be authorized to take intrusive coercive measures, such as ordering arrests, interceptions of telecommunication, or house searches, just as national prosecutors can. Yet – and unlike national prosecuting authorities – the EPPO would be competent to apply these measures in all the territories of the participating Member States, without the restriction of national borders. It might therefore be expected that the ministers of justice, the European Parliament, and the European Commission would hold extensive debates on the precise conditions for searches, telephone interceptions, arrests, and pre-trial detention in supranational investigations. Surprisingly, they have not.  

On the contrary, in their efforts to prevent a further transfer of power to ‘Brussels’, most Member States oppose any further approximation of criminal procedure. And those who do support the establishment of an EPPO hold that citizens’ rights are already sufficiently protected, referring to the fundamental rights acquis laid down in treaties and the EU Charter. They also point out that the EPPO must respect the additional procedural guarantees provided in the domestic legal order of the Member State where it is conducting its operations.

 From national to transnational criminal procedure

Such safeguards are designed for the administration of criminal justice in a domestic system and will not always fit the new transnational setting of the EPPO. The potential consequences of this systemic flaw in EPPO’s design are highly problematic. Imagine that the EPPO conducts a house search without proper judicial authorization in Amsterdam, and then that the case is subsequently brought to trial before a Milanese criminal court. Should the Italian judge apply the complicated Dutch case-law on unlawful house searches? And should the EPPO be allowed to search someone’s personal computer online, from a distance, in order to evade the stricter rules of the Member State on whose territory the computer is located? After all, it is not only the mobility of criminals that is increasing, but also of witnesses, information, and evidence in the area of freedom, security and justice to which the EU aspires. Nonetheless, the proposal remains silent on these issues, with such potential consequence as forum shopping and a race to the bottom of the lowest level of safeguards.

The envisaged framework for the EPPO leaves an important question unanswered: Do discretionary margins for choosing the applicable national law with respect to investigatory powers, procedural safeguards, judicial supervision, admissibility of evidence, etceterapermit arbitrary interference with the fundamental rights of citizens involved in criminal proceedings?

Both the European Court of Human Rights and the European Court of Justice have consistently stressed the importance of the rule of law, as a vital mechanism defending against arbitrary interference with citizens’ fundamental rights. The law provides citizens with legal certainty as to the scope of their rights and duties; it helps to effectuate their defence rights; and it enables courts to prevent executive discretion from turning into arbitrariness. Under the proposed EPPO set-up, the problem is not that national laws are absent, unclear or ignored. The problem is rather that the EPPO is given more than twenty divergent national legal system to work with. This creates the risk that a legal avenue for a particular intrusive measure might be very easy to obtain. In certain cases, the EPPO is allowed to choose the most attractive rules from multiple codes of criminal procedure – and continuously to change the rules during the game, without its adversaries having any say on the matter, and without courts being able to exercise control. This leaves citizens without an adequate indication of which set of national rules will apply in a particular case. 

As a community based on the rule of law, the European Union should protect its citizens against arbitrary action by European law enforcement authorities. In order to guarantee that the rule of law will be upheld in the European Public Prosecutor’s Office, citizens must be offered legal certainty  as to which law will be applied. Moreover, the law must be adequately accessible to all citizens: they must be permitted to know their rights and duties, and invoke them in court.

 

Barnard & Peers: chapter 9, chapter 25

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Is the EU coming to save legal aid, or to bury it? An assessment of negotiations on the proposed Directive

 

by Claire Perinaud (FREE Group Trainee)

For many people facing criminal charges, legal aid is essential if they wish to defend themselves effectively. The EU is planning to adopt legislation on this issue in the near future. But will it actually make a significant contribution to ensuring suspects’ rights in this area?

State of implementation of the Procedural rights roadmap.

After years of unsuccessful attempts, starting in 2004 with a general Commission proposal on procedural rights, it was only from the end of 2009 that the EU legislation on procedural rights for suspects and accused persons in criminal proceedings has progressively taken shape. This was due to the entry into force of the Treaty of Lisbon (TFEU art. 82(2) now confer the power to adopt legislation on this issue), to article 47 of the Charter of Fundamental Rights (providing for the right to a fair trial) and to a political “roadmap” by which, in November 2009 the Council relaunched the Commission original proposals following a step-by-step approach instead of trying to adopt comprehensive legislation as initially foreseen in 2004.

However it is more than likely that this pragmatic approach and the transition from unanimity to qualified majority voting of the EU Member States in the Council (as from the entry into force of the Treaty of Lisbon) has made possible the adoption in co-decision with the European Parliament of the three first legislative measures on suspects’ rights: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU on the right to information in criminal proceedings; and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.

Building on this success, at the end of November 2013 the Commission proposed a second “package” of suspects’ rights measures, comprising: a directive on procedural safeguards for children who are suspected or accused in criminal proceedings; a recommendation on procedural safeguards for vulnerable people suspected or accused in criminal proceedings; a directive strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings; a directive on the right to provisional legal aid for citizens suspected or accused of a crime; and a recommendation on the right to legal aid for suspects or accused persons in criminal proceedings.

In 2014 the Council already reached a general approach on the proposal for a directive on procedural safeguards for children and on the directive on the presumption of innocence. On this basis the dialogue between the Council and the European Parliament (EP) is about to start and it is possible that in the coming months an agreement could be reached so that these texts could be adopted already at the EP’s “first reading”.

Last week the Council reached (after eight months of internal negotiations!) a general approach also on the draft Directive on provisional legal aid for persons deprived of liberty in criminal proceedings and will start in the coming weeks the dialogue with the Parliament also on this text.  

The coming months will then be extremely important for EU procedural rights in criminal matters even if it will not be easy to achieve the high results that the European Parliament and some Member States were expecting. In the absence of the energetic push of the former Commission Vice President Reding there is a risk that the negotiations may achieve the lowest common denominator between the Member States also due to the unwillingness of some of them to adopt any EU legislation which can create further financial and internal institutional tensions.

Legal aid : why make it simple when you can make it tricky ?

The draft Directive on legal aid is probably the text which is currently facing the most adverse winds. Already the initial Commission’s political choice not to deal with legal aid in the Directive on the access to lawyer has created an artificial disconnection from the right to legal aid and the more general “right to legal advice”which is required by the ECHR jurisprudence as well as by the EU Charter (Articles 47 and 48). (On the human rights aspects of the right to legal aid, see the annex).

Instead of tabling a proposal that would cover these two interconnected rights, the Commission chose to come forward with a proposal on the right to access to a lawyer (now Directive 2013/48/EU) and, separately, with this proposal, which is intended however only as a partial complement to the 2013 Directive. In the words of the Commission, “the … proposal is closely linked to Directive 2013/48/EU on the right of access to a lawyer and it aims to contributing to rendering effective the right on access to a lawyer provided for in that Directive at the early stages of the proceedings for suspects or accused persons deprived of liberty”. Thus, no general rules on legal aid, but a mere stop-gap to ensure that in the very early phase of the proceedings some form of legal aid is provided.

Even worse, on the same day that the Commission transmitted its proposal to the European Parliament and to the Council, the Commission adopted a non-binding Recommendation on the right to legal aid for suspects or accused persons in criminal proceedings . The aim of this Recommendation is “to foster certain convergence as regards the assessment of eligibility of legal aid in the Member States, as well as encouraging the Member States to take action to improve the quality and effectiveness of legal aid services and administration“.

The legal basis of the Recommendation aside, its understanding of the implementation of the right to legal aid in criminal proceedings is broader than that of the draft Directive.
According to the Recommendation the right of legal aid has to be guaranteed to any suspect or accused person “from the time they are made aware, by official notification or otherwise, by the competent authorities, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty”, by putting forward the purpose of the right to legal aid, namely to complement and render effective the right of access to a lawyer as set out in Directive 2013/48/EU of the European Parliament and of the Council.

The work in the Council

The Council started examination of this proposal only in July 2014 under the Italian Presidency. However, no agreement was found and at the December 2014 Justice and Home Affairs Council only a “state of play” was presented to Ministers. At the JHA Council on 12-13 March the Council agreed its general approach. Its position shows some significant differences compared to the initial Commission proposal which, as outlined above, was already unambitious:

o a wide possibility for Member States to introduce exceptions to the application of the right to provisional legal aid for minor offences (not further defined) (Article 2 (3));

o a further possibility for Member States to subject the admission to provisional legal aid to discretionary criteria if this refers to “less serious offences” (once again, undefined) (Article 4 (2bis));

o the elimination of the possibility to access provisional legal aid in European Arrest Warrant proceedings as far as legal assistance in the issuing Member State is concerned (Article 5 (2) of the Commission proposal).

In substance, Member States are left free to define the scope of application of the (limited) right to provisional legal aid, with all but the most serious offences as possible exceptions.

It is difficult, in light of this result, to find any real added value in the text provisionally agreed by the Council. This view is shared by a number of delegations (such as France, Spain, Italy, Portugal, Belgium), which, in the course of the Council debate, have made reference to the intention of subscribing a declaration, to be added to the minutes of the Council, in which they express their disappointment. However, these delegations have not blocked the adoption of the general approach, preferring instead to proceed with the legislative procedure and with the negotiations with the European Parliament.

These will be anything but easy: a rapid overview of the amendments tabled by the EP Rapporteur Dennis De Jong (LIBE Committee) and by the other MEPs of the Committee show two widely diverging views of what this Directive should be about. LIBE will vote its “orientation” on April 14 and dialogue can then start. So it is too early to say now if the EP will succeed in enhancing this right (maybe by taking inspiration from the Commission’s Recommendation and translating its content into a binding text).

Reblogged from: http://free-group.eu/2015/03/16/legal-aid-in-criminal-proceedings-will-the-european-parliament-improve-the-councils-general-approach/

 

NOTES

 

Annex

FURTHER READING : Sources of the right to legal aid

The importance of the right to legal aid is linked with the right to an effective remedy and to a fair trial. Indeed as an ancillary right, it enshrines the principle of effective judicial protection and the right to access to justice, which is of primary importance in line with Human Rights declarations applicable in Europe.

Because of its ancillary dimension, the respect for the right to legal aid is provided for in a number of international instruments of utmost importance. It is guaranteed by Article 14 (3) of the International Covenant on Civil and Political Rights (ICCPR), and the fundamental principles on which it should be based are outlined in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems adopted on 20 December 2012 by the General Assembly.

Article 6 (3)(c) of the European Convention on Human Rights (ECHR) sets out a “right to legal assistance where the defendant has insufficient means to pay for legal assistance, and to get free legal aid when the interest of justice so requires”.

Concerning the European Union as such, since the entry into force of the Treaty of Lisbon, the EU Charter has bound the EU institutions. Yet, Article 47(3) of the European Union Charter of Fundamental rights provides that “legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”. Even implicitly, the need to provide for legal aid can be drawn from some other dispositions of the Charter such as Art. 48 (2), which states that “Respect for the rights of the defence of anyone who has been charged shall be guaranteed”.

Furthermore, the respect for the right to legal aid guaranteed by article 47(3) of the EU Charter has to be understood in light of the ECtHR case-law, which contributes to add to the strict procedural side of legal aid a more substantial element, through the requirement of enabling each suspect to present his or her case properly.

To assess the respect of this requirement, the ECtHR held in the case of Airey v. Ireland that the effectiveness of the right to access to justice throughout the right to free legal aid depends mostly on whether the individual in question would be able to present his/her case properly and satisfactorily without the assistance of a lawyer. Circumstances in which legal representation would be necessary for ensuring access to justice could be the complexity of the procedure before the court of first instance and complexity of the legal points involved. This assessment must also take into account personal circumstances of the applicant and the form of legal aid in question.
Therefore the right to legal aid can be limited as far as it is justified by a legitimate aim and that if there exists a reasonable relationship of proportionality between the limitation and the legitimate aim sought.

Barnard & Peers: chapter 26

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