EU strengthens trials in absentia
03 September 2008
On 6 June 2008 EU Ministers of Justice reached an agreement on rules that would enable judgments reached in trials in absentia to be recognised across the EU.[1]
The UK Government is currently backing the proposal, and the European Parliament endorsed it yesterday. It will now go to the Council of Ministers for final approval in the next three months.
In some member states defendants are frequently tried in their absence. But this is banned in other member states, thus posing problems for the mutual recognition of such judicial decisions. For example, there is a problem if a country wants to use a European Arrest Warrant to get hold of a person who that country has tried in their absence.
At present, the executing member state has a degree of discretion and does not have to automatically execute a European Arrest Warrant (i.e. extradite someone) if the country making the request has tried that person in their absence.
The draft Framework Decision would alter five pieces of existing EU legislation which, it is argued, are not working properly owing to uncertainty in some countries about whether to recognise in absentia judgements. The most significant one is the European Arrest Warrant, but the same changes are being made to the Framework Decisions on mutual recognition of financial penalties; confiscation orders; custodial sentences; and probation measures.[2]
The proposal would make it compulsory to hand over people who have been tried in their absence, perhaps without even knowing they were being tried. This would be a big change in the UK. In the UK there were no trials in absentia until 2001, and they are still not usually permitted. They can only be allowed under very strict circumstances.
But the conditions which need to be fulfilled to hand over someone to another member state after they have been tried in their absence would be very weak. Crucially, under the proposal, it is no longer up to the executing country to decide whether the conditions are met. The country issuing the arrest warrant simply fills in the relevant section of the form. If the right box is ticked, the person must be handed over.
For example, people who have been tried in their absence must be handed over if the country which wants them says that the defendant was "informed" of the trial (though not necessarily in person) or if they have failed to request an appeal in time. This is alarming given recent miscarriages of justice in some member states, which we explore in this paper. For example, one British man only found out that he had been tried and convicted of grievous bodily harm in Germany when he was later subject to a Criminal Records Bureau check by a new employer. Other cases involve the summons being sent to the wrong address.
Alternatively if the member state which has issued the arrest warrant promises that the defendant can have an "appeal", then he or she would have to be extradited. This would mean the defendant would only have one proper chance to mount a defence. The charity Fair Trials International argue that in such situations an appeal can be biased toward simply following the court's previous decision: "We know such re-trials can lack substance and merely act to legitimize previous court action."
The German Federal Bar Association has said that it "is against the Draft's inherent 'strengthening' of in absentia judgments, in which the person concerned was neither summoned in person nor otherwise informed of the hearing that led to the in absentia judgment." They warn that "it will become harder for member states to resist unjustified requests for their nationals to be extradited to other EU countries:" [3]
Pieter Cleppe, a European lawyer working at Open Europe, said:
"We believe that mutual recognition instruments, such as the European Arrest Warrant, must not be allowed to undermine long established traditions of fundamental rights."
"This proposal could open the door to serious miscarriages of justice and ministers should not be supporting it."
Open Europe's briefing note is available here:
http://www.openeurope.org.uk/research/tia.pdf
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[1] See: http://register.consilium.europa.eu/pdf/en/08/st11/st11309.en08.pdf
[2] "- Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures between Member states (the so-called "European Arrest Warrant");
- Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties;
- Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders;
- Framework Decision 2008/.../JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union;
- Framework Decision 2008/.../JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions;"
[3] "Lawyers object to EU proposals on in absentia trials", European Voice, 06 June 2008