Immigration detention and the rule of law: the ECJ’s first ruling on detaining asylum-seekers in the Dublin system

Tommaso Poli, LL.M. candidate in Human Rights and Humanitarian Law at the University of Essex, School of Law.

One of the most controversial issues in immigration law is the detention of asylum-seekers. This issue was not initially addressed by the European Common Asylum System (CEAS), but is now addressed in some of the second-phase CEAS measures (the CEAS consists of the Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, the Dublin Regulation and the EURODAC Regulation).

In particular, the second-phase CEAS measures contain detailed rules on detaining asylum-seekers in two cases:  a) general rules in the Reception Conditions Directive, which were the subject of a first ECJ ruling in 2016 (discussed here) and a recent opinion of an Advocate-General; and b) more specific rules in the Dublin III Regulation, applying to asylum-seekers whose application is considered to be the responsibility of another Member State under those rules. Recently, the ECJ ruled for the first time on the interpretation of the latter provisions, in its judgment in the Al Chodor case.

As we will see, the Court took a strong view of the need for the rule of law to apply in detention cases. Moreover, its ruling is potentially relevant not just to Dublin cases, but also detention of asylum-seekers and irregular migrants in other contexts too.

The rules on detaining asylum-seekers in the context of the Dublin process are set out in Article 28 of the Dublin III Regulation. First of all, Article 28(1) states that asylum seekers can’t be detained purely because they are subject to the Dublin process. Then Article 28(2) sets out the sole ground for detention: when there is a ‘significant risk of absconding’. If that is the case ‘Member States may detain the person concerned in order to secure transfer procedures in accordance with’ the Dublin rules, ‘on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively’.

Next, Article 28(3) sets out detailed rules on time limits for ‘Dublin detention’; these are the subject of the pending Khir Amayry case. Finally, Article 28(4) states that the general rules on guarantees relating to procedural rights and detention conditions set out in the Reception Conditions Directive apply to asylum-seekers detained under the Dublin rules.

Al Chodor concerned the interpretation of the grounds for detention under Article 28(2): what is a ‘serious risk of absconding’?  The Dublin III Regulation offers some limited clarity, defining ‘risk of absconding’ as ‘the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond.’ (Article 2(n) of the Regulation). 

Facts

The case relates to an Iraqi man and his two minor children who were travelling from Hungary in the Czech Republic, without any documentation to establish their identity, with the aim of joining family members in Germany. After stopping the Al Chodors, the Czech Foreigners Police Section (FPS) consulted the Eurodac database and found that they had made an asylum application in Hungary. As a consequence, the Al Chodors were subjected to the transfer procedure according to Article 18(1)(b) of the Dublin III Regulation. In addition, the FPS took the view that there was a ‘serious risk of absconding’, given that the Al Chodors had neither a residence permit nor accommodation in the Czech Republic, while they were waiting for their transfer to Hungary.

So, they placed the Al Chodors in detention for 30 days pending their transfer pursuant to Paragraph 129(1) of the national law on the residence of foreign nationals, read in conjunction with Article 28(2) of the Dublin III Regulation. The Al Chodors brought an action against the decision ordering their detention to the regional Court, which annulled that decision, finding that Czech legislation does not lay down objective criteria for the assessment of the risk of absconding within the meaning of Article 2(n) of the Dublin III Regulation. That Court accordingly ruled that the decision was unlawful. Following the annulment of the decision of the FPS, the Al Chodors were released from custody.

The FPS brought an appeal on a point of law before the Supreme Administrative Court against the decision of the Regional Court. According to the FPS, the inapplicability of Article 28(2) of the Dublin III Regulation cannot be justified by the mere absence in Czech legislation of objective criteria defining the risk of absconding. That provision subjects the assessment of the risk of absconding to three conditions, namely an individual assessment taking account of the circumstances of the case, the proportionality of the detention, and the impossibility of employing a less coercive measure. The FPS has submitted that it satisfied those conditions.

The Supreme Administrative Court was uncertain whether the recognition by its settled case-law of objective criteria on the basis of which the detention of persons pursuant to Paragraph 129 of the Law on the residence of foreign nationals may be carried out can meet the requirement of a definition 'by law' within the meaning of Article 2(n) of the Dublin III Regulation, in so far as that case-law confirms a consistent administrative practice of the FPS which is characterised by the absence of arbitrary elements, and by predictability and an individual assessment in each case. So the Court decided to refer to the European Court of Justice for a preliminary ruling asking whether Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring Member States to establish, in a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond, and whether the absence of those criteria in a national law leads to the inapplicability of Article 28(2) of that regulation.

Judgment

The Court of Justice first of all ruled that Article 2(n) of the Dublin III Regulation explicitly requires that objective criteria defining the existence of a risk of absconding be defined by the national law of each Member State (paragraph 27-28). Then, determining whether the word ‘law’ must be understood as including settled case-law, the Court reaffirmed that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, paragraph 27).

So with regard to the general scheme of the rules of which Article 2(n) of Dublin III Regulation forms part, the Court, referring to recital 9 of that regulation, states that the regulation is intended to make necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection of fundamental rights afforded to applicants under that system. This high level of protection is also clear from Articles 28 and 2(n) of that regulation, read in conjunction. As regards the objective pursued by Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) thereof, the Court recalls that, by authorizing the detention of an applicant in order to secure transfer procedures pursuant to that regulation where there is a significant risk of absconding, those provisions provide for a limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter.

In that regard, it is clear from Article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality. Furthermore, it is worth noting that in this ruling the European Court of Justice explicitly aligns its interpretation to the European Court of Human Rights (ECtHR), reaffirming that any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a national law authorizing the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid risk of arbitrariness (judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, paragraph 125).

The Court then concluded by stating that taking account of the purpose of the provisions concerned, and in the light of the high level of protection which follows from their context, only a provision of general application could meet the requirement of clarity, predictability, accessibility and, in particular, protection against arbitrariness. It follows that Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In the absence of such criteria, the detention was unlawful.

Comments

First of all, the Court’s ruling is likely relevant to the interpretation of other EU measures concerning immigration detention. In the Returns Directive, which inter alia concerns the detention of irregular migrants (as distinct from asylum seekers), the ‘risk of absconding’ forms part of the ground for detention (as well as one of the grounds for refusing to allow the irregular migrant a period for voluntary departure); and it is defined exactly the same way as in the Dublin III Regulation. As for asylum seekers who are detained on grounds other than the Dublin process, a ‘risk of absconding’ is an element of one of the grounds for detention under the Reception Conditions Directive, but is not further defined. But a recent Advocate-General’s opinion notes (at para 73) that this clause aims to prevent ‘arbitrary’ detention, which was a key feature of the reasoning in the Al Chodor judgment. This surely points to a consistent interpretation of the two asylum laws. It follows that arguably the Court’s judgment should be relevant not just to Dublin cases but to any immigration detention of non-EU citizens in any Member State bound by the relevant EU legislation.

Secondly, this ruling has reiterated the principle by which although regulations generally have immediate effect in national legal systems without it being necessary for the national authorities to adopt measures of application, some of those provisions may necessitate, for their implementation, the adoption of measures of applicability by the Member States (judgment of 14 April 2011, Vlaamse Dierenartsenvereniging and Janssens, paragraphs 47 and 48).

Most significantly, the Court has reaffirmed the primacy of Human Rights law in EU asylum law implementation, highlighting that the development of the EU asylum law itself depends on its compliance with Human Rights law. In particular, the ECJ’s ruling in this case first of all reflects the ECtHR’s interpretation of the ‘arbitrariness’ of detention, which extends beyond the lack of conformity with national law. Notably, it states that a deprivation of liberty that is lawful under domestic law can still be arbitrary and thus contrary to the general principles, stated explicitly or implied, in the Convention (judgment of the European Court of Human Rights of 9 July 2009, Mooren v. Germany, paragraphs 73-77).

The Court’s ruling also reflects UN human rights norms. The Human Rights Committee’s General Comment No. 31 related to the nature of the general legal obligation imposed on State parties to the UN Covenant on Civil and Political Rights, which all EU Member States are State parties to, which reads that ‘in no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right’ (paragraph 4). Furthermore, the Human Rights Committee’s General Comment No. 35 points out that “arbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality” (paragraph 12, see also HRC, Van Alphen v. Netherlands, paragraph 5.8).

Finally, the Court’s ruling has confirmed the constitutional value of the Charter of Fundamental Rights of the European Union, which assumes a critical value in this historical period, since, as with any constitutional instrument, the more society as a whole is going through difficult times (such as the perceived ‘migration crisis’ in Europe), the more important it is to reaffirm its principles and values.

Likewise Article 52 of the EU Charter states that in no case may restrictions be applied or invoked in a manner that would impair the essence of a Charter right; in the context of detention, a fortiori it can be also affirmed that essential elements of guarantee for that right, as the requirement of lawfulness and non-arbitrariness for the right of liberty, cannot be disregarded in any circumstance. The Al Chodor ruling puts meat on the bones of that fundamental principle.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Amygdaleza detention centre in Greece, credit: www.metamute.org

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

Mutual trust – blind trust or general trust with exceptions? The CJEU hears key cases on the European Arrest Warrant

Henning Bang Fuglsang Madsen Sørensen, Associate Professor, Department of Law, University of Southern Denmark

Monday 15 February was a busy day in Luxembourg. The Court held a hearing in C-404/15, Aranyosi, which was lodged at the Court in July 2015. But the Court also received C-659/15, Caldararu, at 9 December 2015 under the ‘emergency’ PPU-procedure. The Court decided to join the two cases as they were submitted by the same court - Hanseatisches Oberlandesgericht in Bremen, Germany – and concerned the same issue – should surrender on a European Arrest Warrant be refused if there is reason to fear the wanted person will be exposed to inhumane prison conditions in the requesting state? So the hearing concerned both cases and it turned out to be a busy but also interesting day because the two cases touch upon the application of the principle of mutual recognition as the cornerstone of EU criminal law as recognized by recital 6 of the Framework Decision establishing the European Arrest Warrant.

During the day, the Court heard the submissions from the lawyers of Aranyosi and Caldararu, the referring judge from Bremen, 9 Member States (Germany, Ireland, Spain, France, Lithuania, Hungary, The Netherlands, Romania and UK) and of course the Commission.

But what was all the fuss about? Well, let us have a look at the two cases first. Then we will turn to the submissions of the Member States and the Commission.

The cases

Aranyosi is a young man, living with his parents in Bremen. He has a girlfriend in Germany, with whom he has a child. He was arrested in Bremen 14 January 2015 as Hungary had requested his surrender on a European Arrest Warrant. Aranyosi is suspected for two accounts of burglary. However, Aranyosi resisted the surrender, referring to reports from the Committee on the Prevention of Torture (CPT) and case law from the European Court of the Human Rights, which documented a massive over-crowding in Hungarian prisons to an extent that could be considered a violation of ECHR art. 3 (corresponding to Article 4 of the EU Charter of Fundamental Rights). The Bremen Court decided to ask the Luxembourg Court if it was possible to read article 1(3) of the EAW Framework Decision (the ‘human rights’ clause) as an opportunity to refuse the surrender in case of strong indications of detention conditions insufficient to satisfy ECHR art. 3. The Bremen Court also asked if it was possible to request assurances concerning the prison conditions from the requesting state before surrender was allowed. Due to Aranyosi’s connections with Bremen, the judge decided to release Aranyosi while the case was pending.

Caldararu is also a young man. He was sentenced to 8 months in prison by a court in Romania for driving without a driver’s license. The case was heard in absentia. However, Caldararu left Romania before the sentenced time could be served and Romania issued a European Arrest Warrant for Caldararu. He was arrested in Bremen, Germany, on 8 November 2015, and his surrender to Romania was then allowed on 20 November 2015. He refused however to consent to the surrender with reference to the detention conditions in Romania. The Bremen Court decided to keep Caldararu in custody as the Bremen Court also sent a request for a preliminary ruling in this case. The request was sent on 9 December 2015.

So, two cases from the same court, basically concerning the same question: Can a judge refuse surrender if it is feared that detention facilities in the requesting state are inadequate?

But the reply to these questions touches upon a number of arguments, and the day turned out to be very intense as these arguments involves fundamental rights, the principle of mutual recognition, the relationship between Member States and not least what to do if surrender is denied. The parties were far from a common understanding of how these arguments should be used, and the hearing turned out to be a very interesting and well-spent day in Luxembourg.

Let us have a look at some of the major arguments.

The first argument – mutual trust means blind trust!

One could argue that mutual trust means blind trust to such a degree that the executing Member State must execute the European Arrest Warrant without any checks for anything else other than the grounds for refusal to execute an EAW mentioned in Articles 3 and 4 of the Framework Decision (such as double jeopardy, or age of a child).

The Bremen judge of course opposed this view as this would make his request for a preliminary ruling obsolete.

Especially Spain supported this argument, saying that the evaluation of the protection of fundamental rights is a privilege for the court in the issuing State as the court in the executing State is not empowered to make abstract evaluations of the prison conditions in another Member State. The prior CJEU judgment in Melloni was mentioned as an example of a situation, where Spain was denied the possibility to make the surrender conditional upon specific guarantees. Spain had difficulties aligning the conclusions of Melloni with a possibility to make evaluations of foreign prison systems prior to deciding surrender and then perhaps condition the surrender on guarantees regarding detention conditions. Spain therefore held, that the executing State had to surrender unless Article 3 or 4 of the Framework Decision were applicable and it would then be for the courts of the requesting state to evaluate whether prison conditions would amount to a violation of ECHR art. 3 / Charter art. 4.

Lithuania presented a similar argument, arguing that the principle of mutual trust would fall apart if Member States were given the power to check each other in regard to prison conditions. Lithuania further referred to TEU art 7 (on the possible suspension of a Member State from the EU on human rights grounds) as the procedure prescribed by the treaties in case a Member State is found not to respect fundamental rights. Lithuania also expressed concern whether the issuing State would be able to make its arguments before the court in the executing State deemed the prison conditions in the issuing State insufficient in regards to fundamental rights, and it could lead to a situation where the issuing State would be denied the possibility to use the EAW as such. This would make it impossible to prosecute absconded criminals and would thus threaten the idea of AFSJ as such.

The remaining States together with the Commission were in opposition to Spain and Lithuania. The parties argued in general in favor of understanding mutual trust as a general trust in opposition to a blind trust. The Bremen judge reported his difficulties when reading about the prison conditions in Hungary, and how he had asked the German Government in vain to obtain guarantees concerning the prison conditions for Aranyosi. He argued that it would be unacceptable to demand that a judge should ignore obvious reasons to fear for violations of fundamental rights and the possibility of denying the execution of the EAW had to be present in such a situation. Being a judge himself, he called upon the Luxembourg judges not to put this burden on him.

The German Government along with Ireland, France, Hungary, The Netherlands, Romania, UK and the Commission presented various arguments in favor of understanding mutual trust as a general trust which only is rebuttable in very exceptional circumstances.

Germany argued that the executing state cannot be making assessments of the respect for fundamental rights in other Member States, except when under very exceptional circumstances. Such circumstances could be several reports from the Council of Europe, CPT, judgements from the ECtHR, reports from NGOs and even from the American Secretary of State. Germany further read recital 13 in the preamble together with art. 1(3) of the EU Framework Decision in such a way that a risk of violation of fundamental rights is a general reason for denying execution of the EAW in supplement to the specific reasons mentioned in Articles 3 and 4 of the law. Ireland supported this argument with a reference to recital 12, while Hungary supported the argument with reference to recital 10. The UK also argued in favor of reference also to recitals 5 and 6, together with recital 10, 12 and 13 and Article 1(2) and 1(3).

The Commission argued for the need of a balance between mutual trust and the protection of fundamental rights, requiring Member States to have a general trust in each other with a possibility to test the protection of fundamental rights if there seems to be a real risk for a violation of fundamental rights. The Commission found support for this in Art. 19(2) of the Charter (non-removal from a Member State to face torture et al), as the Commission supported the Bremen judge by finding it unacceptable to force a Member State to surrender to a known risk of violation of fundamental rights without taking action to protect fundamental rights. The Commission further stressed that if the principle of mutual recognition would prevail over the protection of fundamental rights, then a principle had been given more weight than fundamental rights. Fundamental rights, being a part of primary law and the reason for the Union as such, could not be set aside by a general principle within EU law.

When is the obligation to examine a potential risk triggered?

If detention facilities in the requesting Member State may be examined prior to the decision of surrender, then how much is needed for triggering such an examination?

The main question was whether an examination should be accepted only in case of systemic failures in the requesting state or whether an individual risk concerning the specific person should be enough. The first situation, where an examination only is acceptable in cases of systemic failures, correspond to the conclusions of the Luxembourg Court in the cases of N.S. (on the Dublin system in Greece). and Melloni, and also paragraphs 191-194 of Opinion 2/13 (on ECHR accession). The second situation corresponds to the conclusion of ECtHR in Soering (on extradition to ‘death row’ in the USA).

Germany, UK and The Netherlands argued in favor of the individual approach, exemplified by a person who may be kept under harsh detention conditions due to religion or sexual orientation. Ireland argued together with France, Romania and Hungary in favor of the systemic approach, and also stressing that the threshold that has to be met had to be set rather high in respect for the principle of mutual trust. Spain argued against both approaches, as Spain found the examination to be directed against the detention facilities of the requesting state and as such not covered by any of the terms. Lithuania referred to art 7 TEU as the correct method to handle suspicions concerning violation of fundamental rights in a Member State, and concluded on this basis that the examination conducted in the executing Member State should be limited to an examination of whether or not art. 7 had been activated in regards to the issuing Member State.

The Commission found it relevant to initiate an investigation if an individual risk were present.

The parties were thus split in half on the question of whether an examination was allowed only in case of systemic failures or whether the examination should be allowed based on the individual risk of the person wanted for surrender. The submissions of the Member States were however also influenced by the question of what to do if the examination leads to the conclusion of a present and relevant risk in case of surrender – should the requesting state be given the opportunity to eliminate the found risk through guarantees or should the surrender be conditioned upon guarantees? The position of the Member States on this issue will be reported below. First, we must turn our attention to how the Member States would examine a real and present danger of a violation of a fundamental right in case surrender is allowed.

How will the Member States examine a claimed risk of violation of fundamental rights?

The problem of how a court in one Member State can obtain information on the detention system in another Member State in order to establish whether or not these detention facilities may be seen as a violation of fundamental rights were also included in the submissions of the parties.

Germany referred to reports from the CPT and the Council of Europe, together with the case law of the ECtHR, reports from NGOs and even the American Secretary of State. Germany stressed that these sources had to be published within a reasonably short time before the national court was to decide on the question of surrender. The UK also supported the use of reports from international organs, the case law of the ECtHR, individual claims and testimonies and reports from national experts. Ireland and The Netherlands also argued for the use of reports from the CPT and the case law of the ECtHR, while France considered especially the case law of the ECtHR as relevant. Hungary elaborated on the fact that reports from the CPT are at least one year underway, while a judgement of the ECtHR refer to facts as they were at the time of the claimed violation. That could be several years prior to the judgement were handed down. These sources thus had to be used with great care.

Romania did not elaborate on the question of how to make an examination. Also Spain and Lithuania opposed the general idea of letting foreign courts examine domestic prison conditions, but did not elaborate on how this may be done in case the Luxembourg Court would allow it.

The Commission supported the use of the case law of ECtHR, reports from international organisations, statistics on the over-crowding of prisons in the requesting State and even any other relevant source. The Commission was thus in line with especially Germany and UK.

The importance of dialogue between Member States – the concept of guarantees

Several parties stressed the importance of dialogue between the requesting Member State and the executing Member States.

The Bremen judge, Germany and France argued in favour of giving the judge of the court in the executing Member State the possibility to call for guarantees from the issuing Member State. The guarantees would be able to remove the fear for a violation of fundamental rights, and the surrender should therefore be denied if the required guarantees were not provided.

Ireland and The Netherlands found no basis for refusing to surrender due to the lack of diplomatic guarantees. The executing Member State had to make its mind up whether or not there would be a real and present risk for a violation of fundamental rights and handle the request for surrender in accordance with this.

Spain argued against the use of guarantees, as the judge calling for the guarantees may be setting the criteria that has to be met before he or she will allow surrender. This would generate a risk of huge variations in the way the Member States use this possibility, and would therefore threaten the uniformity of Union Law. Lithuania also argued against the use of guarantees by elaborating on the fact that the guarantee is not worth much if the requesting Member State decides not to fulfill its obligations in accordance with the guarantee after the surrender has taken place.

Especially Hungary stressed the importance of Article 15(2) of the Framework Decision. If a Member State is afraid of surrendering due to the fear of violation of fundamental rights, then the two involved states must engage in a dialogue for the purpose of removing the reasons for this fear. Hungary saw the risk of violations as a specific and concrete problem, which could be handled with specific and concrete solutions. Such solutions could be alternative detention measures, a decision to keep the surrendered person in custody in another prison or perhaps show the executing court that the reasons are obsolete due to for instance the constructions of new prisons following e.g. a judgment from the ECtHR. This line of arguments was supported by the UK as well as Ireland and The Netherlands. These arguments were also supported by Romania by stating that the risk for a violation of fundamental rights may be real and present but nevertheless possible to eliminate in the specific case. The Commission also supported this view.

Especially Romania also raised another issue concerning equal treatment, as Romania mentioned that if certain inmates where kept under custody under more beneficial conditions due to guarantees while other inmates were kept in custody under normal conditions. Romania pointed to the simple fact that if prisoners with guarantees were to be given more space, then the remaining prisoners would have even less space. This motivated the referring judge to ask Romania, Germany and France to elaborate on this risk concerning unequal treatment. Romania found this risk to be non-acceptable, while France argued that the risk of unequal treatment were a less evil than the risk of violating fundamental rights. Germany stated, that Germany did not want unequal treatment, but appropriate prison conditions. The risk of unequal treatment was however the only way to respect the Soering judgment of the ECtHR.

Thus, there were different views on whether surrender could be conditioned upon guarantees or whether guarantees should be seen more as a dialogue comforting the executing judge in the removal of a risk of violation of fundamental rights. However, there seemed to be general consensus when it came to how guaranties should be issued, as the parties found this should be regulated in national law of the specific Member State.

The consequence of denying surrender

The last major issue touched upon by the parties was the question of what should happen if surrender were refused.

The Bremen judge explained how German law made it possible to let Germany continue the criminal proceedings if surrender was denied, but practical problems in regards to witnesses etc. made this theoretical possibility an illusion in real life. In regards to Aranyosi, a decision not to surrender would therefore in real life also be decision to discontinue the criminal proceedings. In regards to Caldararu, who was sentenced in Romania, a decision to not surrender could provide the basis for letting Caldararu serve the sentence in Germany, but this would also result in a number of practical problems as Caldararu only had stayed a very short time in Germany. He therefore does not speak the language nor would any initiatives to rehabilitate him into the German society have any likelihood for success.  So it was also questionable whether it would be relevant to transfer the sentence to Germany in the present case. The Bremen judge made it clear that it would not be satisfactory if a denial to surrender the sought person would mean crimes would go unpunished.

The German government shared this view, while France noted that it was for each Member State to decide whether they would let their courts have jurisdiction in cases in which surrender had been denied. Romania also made it clear, that it would be unacceptable if criminal activities were going un-punished because of a decision to deny surrender. If the executing Member State denies surrender, then the executing Member State must bear the responsibility to see justice fulfilled. Lithuania pointed to the fact that a decision not to surrender due to unsatisfactory detention facilities would in practice create areas within the AFSJ it which it would be impossible to punish crimes as the criminals would be able to commit their crimes in such areas and then flee to other parts of the AFSJ without risking surrendering afterwards.

A number of parties also underscored this as the major difference between asylum law and the test used in the N.S. case against criminal law and the test that may be used in the present cases. If the return of an asylum seeker is impossible, then the Member State in which the asylum seeker is at the moment will be able to process the application for asylum. It is of lesser importance for the asylum seeker whether one or the other Member State processes the application for asylum as asylum law is almost fully harmonized. The consequence of not surrendering a suspect in a criminal case could very well be that crimes would go unpunished, which is a rather different result and of course not acceptable.

What next?

The Advocate General promised to announce within 24 hours when his opinion will be submitted to the Court. The cases were heard on 15 February 2016 but the Curia-webpage still do not contain any new information by the end of the 17 February 2016. Nonetheless, Caldararu is a PPU-case as Caldararu is kept in custody, and we must therefore expect the opinion of the general advocate within few days. The decision of the Court will then be expected within a few weeks or perhaps a month, so the excitement will soon be released.

It seems apparent that especially Spain and Lithuania were very skeptical as to whether one Member State should be allowed to examine the detention facilities in another Member State at all. The other seven Member States seemed to find it appropriate to have the possibility in very exceptional circumstances. France, Romania and Hungary seemed to limit the possibility to cases with systemic problems, while the remaining Member States also wanted to be able to conduct an examination in cases with individual problems. Germany wanted to let the executing Member State demand guarantees from the issuing Member State so surrender could be denied if the requested guarantees were not delivered. The remaining Member States seemed to agree that the two Member States had to engage in a dialogue to establish whether there was a problem in the specific case at all and whether a problem could be solved by for instance alternative detention measures. It is also worth noticing the position of the Commission as a rather pragmatic approach, where the Commission supported the need to make investigations in even individual cases, using a variety of sources.

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: www.romania-insider.com

Free at last? Detention, the European Arrest Warrant and Julian Assange

Steve Peers

“Bianca Jagger is here!”

I had just arrived at a meeting in the House of Lords, to give a talk on the European Arrest Warrant (EAW) and human rights. I thought that having the famous human rights activist in the audience when I spoke would be the most exciting thing that could happen to me that day. But I was wrong.

“Bianca Jagger wants to ask you a question, before we start!”

My heart skipped a beat as the beautiful activist walked slowly, catwalkishly, across the room in my direction. Finally, she was right in front of me. My heart stopped beating entirely. And then she asked me her question:

“Will you be speaking for very long?”

Needless to say I subsequently gave one of my shortest talks ever – although I suspect that it seemed endless to Ms. Jagger. Indeed, I imagine that for her, listening to my talk was comparable to the lengthy periods of pre-trial detention which some people face on the basis of EAWs.

This brings me to Lanigan: a key judgment on lengthy pre-trial detention and EAWs, issued by the Court of Justice of the European Union (CJEU) last year. It seems only appropriate that I am discussing this case rather belatedly. On the other hand, though, it is very timely to take the opportunity to discuss also the relevance of this judgment to the UN opinion (released today) on the ‘arbitrary detention’ of Julian Assange – who is also facing an EAW. And just as I promised Ms. Jagger, I won’t detain my beautiful readers for very long.

The Lanigan judgment

Unfortunately EAWs are often issued for the most trivial reasons. A carpenter, removing a wardrobe door until he got paid. (What Would Jesus Do?) The theft of a piglet. And my personal favourite: the friend of a friend who came to a house party and took someone else’s can of beer. That last case makes me pine for the return of the death penalty.

Yet the Lanigan case usefully reminds us that EAWs are also issued for the most serious of crimes. Mr. Lanigan was wanted on murder charges in the UK, which issued an EAW to the Irish Republic. He was detained in Ireland while he fought the execution of the EAW. Finally, the Irish courts decided to ask the CJEU if the months he spent fighting the EAW were a breach of the deadlines to execute it – as set out in the EU Framework Decision which created it – or of human rights law. This was the first Irish reference to the CJEU on criminal issues, following the expiry on the limits of the CJEU’s criminal law jurisdiction in December 2014 (for more on that transitional issue, see here).

According to the CJEU, the continued detention of Mr. Lanigan pending the EAW did not invalidate the EAW itself. Nor was there an obligation to release him. First of all, the Court insisted that the time limits in the legislation (60 days to execute an EAW, with a possible 30 day extension) had to be complied with strictly. This followed its earlier ruling in the Forrest case, which concerned the British schoolteacher who had fled to France with an underage schoolgirl.

But then the Court ate its previous words. The problem was that in this case, strict compliance with the time limits conflicted with the underlying obligation to execute the EAW. The Court referred to its many previous rulings insisting on the limited exceptions to that latter obligation. So it gave preference to the underlying rule, ruling that the EAW remained valid once the deadline expired: the ‘time limit’ was not really a time limit at all. (I wouldn’t advise students, lawyers, journalists or many others to take the same approach to deadlines.)

It got worse for Mr. Lanigan. The CJEU ruled that the expiry of the deadlines did not mean that Ireland had to release him from prison either. It pointed out that the rules on detention in the Framework Decision were very vague: national judicial authorities have to decide on detention; the fugitive may be given bail, if the authorities take steps to stop him or her absconding; and the issue is basically subject to national law. The EU rules do say that fugitives must be released from custody after the execution of an EAW, if the deadlines to surrender the person to the State which issued the EAW are not complied with. But in contrast, there is no such obligation if a State misses the deadline to execute the EAW in the first place.  

Yet if there’s no real deadline to execute an EAW, and no obligation to release a fugitive from jail because that ‘time limit’ is a legal fiction, people could effectively end up facing indefinite detention without trial. Rightly realising that this was unacceptable, the Court, for the first time, gave some grudging respect to the many references to human rights set out in the EAW law. In this case, that meant the rules on detention were subject to Article 6 of the EU Charter on Fundamental Rights, which had to be applied consistently with the rules on detention set out in Article 5 ECHR. So the relevant case law of the European Court of Human Rights applied: fugitives can only be detained if the EAW procedure is being carried out with ‘due diligence’. The national court has to consider all the factors, including any lax behaviour by the Irish authorities, the conduct of the fugitive himself, the possible sentence (severe in this case), the risk of absconding and the huge overrun of the deadlines.

The Assange case

In Lanigan, the CJEU wasn’t called upon to deal with the two detention issues that most frequently arise in practice as regards EAWs: (a) the lengthy pre-trial detention that fugitives are often subject to in the issuing State after they are surrendered there, and (b) the poor detention conditions which they sometimes face there. The CJEU will shortly rule on the latter issue, in the cases of Aranyosi and Caldararu.

Nor, obviously, was it called upon to deal with the peculiar circumstances of Mr. Assange: fleeing into a third State’s embassy, to escape the execution of an EAW, because the investigation which motivated the issuing of the EAW was allegedly politically motivated, and a further extradition request from the USA was possibly looming. Today we have a new twist: the opinion of a UN body that his ‘detention’ in the embassy is ‘arbitrary’.

How does EU law apply to this issue? In fact, EU law issues were discussed in the earlier UK litigation, in particular in the Supreme Court judgment. At that time, the UK courts were, like the Irish courts, unable to ask the CJEU questions about EU criminal laws adopted before the entry into force of the Treaty of Lisbon. Now they can. So Assange could arguably bring a fresh challenge in the UK courts to the execution of the EAW in light of the UN ruling. He could either (a) request the UK courts (at any level) to ask the CJEU questions about the EAW law (the CJEU will likely give an emergency ruling, within about three months), or (b) litigate back up to the Supreme Court, then go to the European Court of Human Rights to complain if he loses his case.

What’s the likely outcome? The European Court of Human Rights is usually keen to take into account the opinion of other human rights bodies (for an exception, see the RMT case); but the CJEU is not. In the Grant case, it rubbished the opinion of the UN Human Rights Committee, and in the well-known Kadi line of case law, it deemed that the UN Security Council had not provided enough legal protection when listing people as terrorist suspects.

Applying the Lanigan case to the facts of Assange, there is a strong obligation upon the UK to execute the EAW, which obviously remains valid. His continued ‘detention’ also remains valid, since he has the obvious intention to abscond. There are human rights arguments: the risk of an unfair trial in Sweden or the USA, and the ‘detention conditions’ in the embassy. As I noted above, the CJEU is usually dismissive of human rights arguments in the EAW context, although there was a nod to ECHR case law in Lanigan. On this issue, things should be clearer after the judgments in Aranyosi and Caldararu, which we can expect before Easter.

It might be better, from Assange’s perspective, to fight all the way again through the UK courts without asking for a CJEU reference, and then head to the ECtHR in Strasbourg. That’s not entirely up to him, though: the UK government could ask the courts to send questions to the CJEU. If he does get to Strasbourg, the ECtHR might be torn between its usual enthusiasm to endorse the work of international human rights bodies, and its traditional deference to the CJEU on human rights matters within the scope of EU law. The Assange saga might have awhile to run yet.

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: www.dailymail.co.uk

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

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