Fundamental cornerstone of British justice surrendered

Last June, the Justice and Home Affairs Council reached a general approach on a draft framework decision supporting the application of the principle of mutual recognition in respect of decisions rendered in the absence of the person at the trial. Such framework decision will jeopardise fundamental principles of British justice such as the right to a fair trial.

Trials in absentia are allowed in the British law since 2001 but only in rare circumstances, nevertheless the Government has not only backed such proposal but in fact it co-sponsored it. Under the proposal a British citizen might be sentenced in a court of another EU Member State without his/her presence and then extradited to that Member State to face a prison sentence without having chance to exercise their right to defence – which does not respect the principles of a fair trial.

On 14 January, EU countries Slovenia, France, the Czech Republic, Sweden, Slovakia, the United Kingdom and Germany put forward a proposal for a Council framework decision on the enforcement of decisions rendered in absentia aiming at harmonising recognition of trials in absentia within the EU. This framework decision would amend the four existing pieces of legislation which provided for the recognition and enforcement of several judicial decisions in criminal matters: the framework decision on the European Arrest Warrant, the framework decision on the mutual recognition of financial penalties, the framework decision on the mutual recognition of confiscation orders and the draft framework decision on the mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving the deprivation of liberty.

The aim of the proposal is to determine the circumstances that must be present for the enforcing country to implement a decision even though the defendant is absent at the trial. The draft framework decision introduces a criterion which, if it is not met, would allow judicial authorities of the executing country to refuse to recognise and enforce a judgment received from another Member State made in absentia. Hence, under the draft framework decision the defendants must be notified in their own language about the trial, have access to legal representation and have a right to apply for a retrial. In this case the recognition and execution of a decision rendered following a trial in absentia should not be refused.

For instance, the execution of a European Arrest Warrant (EAW) may be refused when the defendant has not appeared personally in the trial – however, the EAW states that one of four cases applies: the defendant has received an official information of date and place of trial in due time in order to be allowed to exercise his rights of defence; the defendant had appointed a legal representative and was represented by this person at the trial; the defendant has been served with the decision and, having been informed about the right to a retrial has stated that he did not contest the decision or did not request a retrial. However, the right to a retrial following judgements in absentia is an inadequate safeguard.

The draft proposal is to be adopted through the consultation procedure with unanimity required at the Council. The European Parliament has issued its opinion on this proposal on 2 September 2008. The European Parliament approved the proposal for a framework decision on enforcement of decisions rendered in absentia by 609 votes in favour, 60 against and 14 with amendments. Under the consultation procedure the Council is not bound by the Parliament’s position but only under the obligation to consult it. The European Parliament wants to strengthen the rights of persons judged in absentia but it also wants to ease the application of the principle of mutual recognition. The European Parliament has called for the adoption of the framework decision on procedural rights in criminal proceedings as soon as possible.

The MEPs have defined cases in which the enforcement of the decision rendered following a trial at which the person concerned did not appear in person can be refused. The European Parliament has stressed that it must be “unequivocally established that the person was aware of the trial.” Moreover, according to the European Parliament, the system of a retrial does not exist in all Member States. Hence, it has proposed that the person concerned has the right to participate in the retrial or appeal.

According to the European Voice, the European Criminal Bar Association (ECBA) and the German Federal Bar have criticised this framework decision as they believe it would be difficult for member states to refuse requests which are not properly justified to extradite their nationals to other EU Member States. According to the ECBA, the proposal “simply facilitates the execution of in absentia judgements.” There are also concerns over violation of the procedural rights of the defendant. Under the system of mutual recognition, the UK is prevented from challenging any judgment from a court of another member state and is required to execute it. Philip Bradbourn, MEP, Conservative justice and home affairs spokesman in the European Parliament has said “This proposal goes against one of the most fundamental cornerstones of British justice – that the accused has a right to defend himself at trial. … Not content with eroding our liberties in Westminster, Labour is also undermining them in Brussels.” The proposal will go back to the Council to be formally adopted and it will not take long to be implemented as EU law.

Margarida Vasconcelos, The European Foundation