Running before We Can Walk? Mutual Recognition at the Expense of Fair Trials in Europe's Area of Freedom, Justice and Security
| Author | Emily Smith |
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| DOI | http://doi.org/10.1177/203228441300400106 |
| Subject Matter | Article |
82 Intersentia
RUNNING BEFORE WE CAN WALK? MUTUAL
RECOGNITION AT THE EXPENSE OF FAIR
TRIALS IN EUROPE’S AREA OF FREEDOM,
JUSTICE AND SECURITY
E S*
ABSTRACT
e last decade has seen the EU place unprecedented emphasis on increasing and
improving cooperation between Member States in criminal justice matters. However,
for most of this period the fundamental rights of suspects and defendants have been
largely ignored. In recognition of this, the EU adopted the Roadmap for strengthening
the procedural rights of suspected or accused persons in criminal proceedings in 2009.
is paper ex amines the steps necessary to establish an e ective and coherent system of
EU criminal justice procedure: one which enables Member States’ prosecution and
judicial authorities to cooperate e ectively in the ght against serious cross-border
crimes, while also ensuring e cient protection for the fundamental rights of suspects
and defendants. It looks at th e progress that has been made under the Roadm ap and the
work that remains to be done. Fair Trials International’s case studies are used to
demonstrate the dangers of introducing mutual recognition instruments such as the
European Arrest Warrant for prosecutors when suspects and defendants do not have
tangible, enforceable fair trial r ights in many EU countries.
Keywords: criminal justice; European Arrest Warrant; mutual recognition; pre-trial
detention; Roadmap
1. INTRODUCTION
In the past decade, the Eu ropean Union (EU) has placed unprecedented emphasis on
increasing and improving the cooperation between EU Member States in criminal
* Emily Smith i s the Policy O cer at Fair Trials Inter national, a charit y that campaigns on beh alf of
those facing t rial in a countr y other than their ow n.
Running before We Can Wal k?
New Journal of Eu ropean Crimina l Law, Vol.4, Issue 1–2, 2013 83
justice matters. e single market concept has been borrowed in an e ort to stream line
procedure in the ght against cross-border cri me through the introduction of an ‘area
of freedom, security a nd justice’1 within Europe.
is is based on the idea of mutual recognition of judicial decisions; if one EU
country makes a decision (for example that a person should be extradited) then that
decision will be respected and applied by courts and authorities across the EU. e
agship mutual recognition measure was the European Arrest Warrant2 (EAW), a
fast-track extradition system between EU Member States. e basis of mutual
recognition is mutual trust, the concept that countries must be able to rely on each
others’ justice systems to del iver a fair trial.
e establishe d reality of freedom of movement in the EU today means that t here
is a need for e ective measures to tackle serious cross-border crime and ensure that
those wanted by prosecutors cannot evade justice by exploiting open borders.
However, it is also important to make sure that suspects’ and defendants’ fair trial
rights guaranteed by the EuropeanConvention on Human Rights (ECHR) are
respected wherever they are a rrested. To enable full enjoyment of rights and freedom,
there must be “a genuine area of justice, where people can approach courts and
authorities in any Member States a s easily as their own”.3
e fact that all EU Member States are subject to the standards set out in the
ECHR “has not proved to be an e ective means of ensuring t hat signatories comply
with the Convention’s standards”.4 Between 2007 and 2011 the European Court of
Human Rights (ECtHR) found that EU Member States violated Article 6 rights in
1,996 cases.5 e number of violations combined with the huge backlog of cases at
the Strasbourg cour t (in April 2012 this stood at 150,000)6 indicates that the ECHR is
not e ect ive as a standalone tool for upholding fair trial rig hts.
e EU’s Roadmap for strengthening the procedural rights of suspected or
accused persons in criminal proceedings (the Roadmap)7 was adopted in 2009 to
address this problem. Despite recent progress8 under the Roadmap, this paper
1 See Tampere European Council 15 and 16 October 1999 Presidency Conclusions, available at
www.europarl.europa.eu/summits/tam_en.htm.
2 Council Fra mework Decision of 13June 2002 on the Eu ropean arrest warra nt and the surrender
procedures between Member States (2002/584/JHA).
3 See Tampere Europea n Council 15 and 16 October 1999 Presidency Conclusions , available at
www.europarl.europa.eu/summits/tam_en.htm.
4 Report from t he Commission to the Eu ropean Parliament a nd the Council On the i mplementation
since 2007 of the C ouncil Framework Dec ision of 13June 2022 on the Europea n arrest warra nt and
the surr ende r pro cedu res b etw een M embe r Sta tes , Bru sse ls 11Ap ril 2011, C OM(2011) 175 nal , p.6.
5 European Cou rt of Human Rights : statistical in formation.
6 See for example w ww.soros.org/sites/default / les/ech r-reform-qanda-4-3-12-2.pdf.
7 Roadmap for streng thening procedural rights of su spected or accused persons in criminal
proceedings , (2009/C 295/01), 30November 2009.
8 Direct ive 2010/64/EU on the right to interpretation and translation in cri minal proceedings,
20 October 2010, and Direc tive 2012/13/EU on the right to in formation in crim inal proceedings,
22May 2012.
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