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Publication

Justice in Europe - 2017

LEAP Annual Report

May 30, 2017 - LEAP, European Arrest Warrant, Pre-trial detention, plea bargains, Access to Justice, Presumption of innocence, Equal Justice
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Foreword

The last year has been a challenging year for Europe and human rights, including the right to a fair trial. Several threats to this key founding principle of the European Union, at the heart of the rule of law, come from within the Union itself.

In Poland, an ongoing constitutional crisis is undermining democracy and respect for the rule of law, while putting fair trials at risk by giving the Minister of Justice power to intervene in investigations and prosecutions. In Hungary, the government of Prime Minister Victor Orbán is threatening the freedom of the media and civil society, whilst stirring fear of migrants and anger against the EU.

In the meantime, Turkey is drifting farther away from the European Union and values of democracy, rule of law and respect for human rights. Following the 2016 attempted coup, the Erdogan administration enacted emergency provisions that threaten fair trial rights for thousands of people suspected of involvement in the rebellion. Those who fled to Europe face the threat of extradition requests and the Member States in which they found refuge are under pressure to extradite them, notwithstanding concerns that prosecutions are politically motivated and that people would not get a fair trial if returned. Cases of unlawful transfers to Turkey have been reported by members of the Legal Experts Advisory Panel (“LEAP”).

Cross-border justice remains a critical area at the international level, with mechanisms created to fight serious cross-border crime being used in a way that undermines human rights or even abused by authoritarian regimes to chase political dissidents, journalists and activists. Public security concerns only serve to increase pressure on Member States to cooperate with other countries, even where this poses grave human rights risks.

On a more positive note, last year has seen some progress too in relation to the protection of fair trials in the EU, which we are proud to have contributed to.

Firstly, in early 2016, two EU Directives were passed to strengthen the right to be presumed innocent and to protect the rights of children in criminal proceedings. More recently, in October 2016, the Council adopted the Legal Aid Directive, which sets common standards across the EU to ensure financial and judicial support is granted in criminal proceedings to all accused persons who cannot afford a legal defence with their own resources. Thanks to these three Directives, much of the EU’s work to create a package of binding minimum standards on the right to a fair trial (the “Roadmap”) is now complete, seven years on from its endorsement in 2009. As a result, LEAP’s work will now focus on the effective implementation of these key instruments which have the potential to lead the way globally in the protection of this crucial human right and to guarantee that the EU lives up to its commitment to the rule of law.

Secondly, pre-trial detention reforms were recognised by Vera Jourova, the European Commissioner responsible for justice matters, as one of her key priorities. This commitment is all the more welcome in light of the work undertaken by Fair Trials, our partners and LEAP on this subject (“A Measure of Last Resort? The Practice of Pre-Trial Detention Decision-Making in the EU”), which shows how pre-trial detention is being ordered, without effective judicial scrutiny, in cases where detention is not justified, throughout the surveyed countries. As a result, people are spending months and even years in remand in the absence of real procedural safeguards. This is not just a national problem, as unjustified and lengthy pre-trial detention is threatening mutual recognition between EU domestic courts and hindering cross-border justice cooperation. Therefore, Fair Trials and LEAP welcome the Commissioner’s commitment to EU-wide action on pre-trial detention to resolve this major cause of prison overcrowding in Europe.

Thirdly, in April 2016, the Court of Justice of the EU ruled in joint cases Aranyosi and Caldararu that member states must assess respect for human rights before surrendering a person under a European Arrest Warrant (“EAW”). Before this judgment, many Member States considered that their obligation to respect the judicial decisions of other EU countries was more important than their obligation to protect the human rights of the people in their jurisdiction. While the full implications of the decision are not yet clear, the Court’s reiteration of the primary importance of respecting human rights is welcome.

Against this mixed picture of the state of defence rights in Europe, LEAP will now focus on fighting new and ongoing threats to the right to a fair trial, while also ensuring that the exciting potential of the EU’s minimum standards on procedural rights achieve their potential across Member States. To this end, we are looking to engage more in working with LEAP members to develop local advocacy in individual EU member states and have launched regional-level initiative groups of pooled expertise on critical under-explored issues, such as related to remedies available in national law for violations of the procedural rights standards and the implementation at the national level of the judgements of the European Court of Human Rights and Court of Justice of the EU related to these standards. These national and regional clusters are already developing some very concrete action plans, which we are excited to follow up on and support in the upcoming months and years.

The present report recounts some of the major achievements of the LEAP network over the last year. For ease of reading, we have decided to divide the report into six thematic sections, each one dedicated to a specific aspect of the right to a fair trial and the threats to which it is subject. Throughout the publication, you will find country-focus sections, case studies and infographics that illustrate some of the issues at a glance. 

On behalf of Fair Trials, I would like to thank all the LEAP members who have donated their time and money to our work, allowing us to continue our fight for fair trial rights across Europe.

Ralph Bunche

Regional Director (Europe), Fair Trials

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Pakistani defendant in France awaits translation for over 10 months in pre-trial detention

In one case from the last year, criminal defence lawyer and French LEAP member Alexandre Gillioen has been fighting over translation rights in a case involving a Pakistani national. The defendant, who has lived in Lyon since 2002, was arrested on charges of cooperating with an illegal migration network and put in pre-trial detention in April 2016. At the time of producing this report he was still in pretrial detention, 13 months later. The defendant does not speak French, only Urdu-Punjabi. The first interrogation took place in early June 2016 but his client did not understand the charges brought against him. As no written translation of case materials was provided, Alexandre requested a translation into Urdu-Punjabi, at least for the essential elements of the case. The investigative judge agreed to his request but informed Alexandre that the translation might take several months.

When contacted by Alexandre, Fair Trials advised him to write to the French judge and suggest that the issue be referred to the CJEU for a preliminary reference: The Interpretation and Translation Directive provides that suspected or accused persons are provided with a written translation of all essential documents, within a reasonable period of time and the Right to Information Directive requires documents to be made available to defendants if they are needed to challenge the legality of the detention. Sadly, the national judge overlooked the request for the preliminary ruling. A further appeal to the Supreme Court (Cour de Cassation) in January 2017 was dismissed. Alexandre decided then to ask for an interpreter to be able to speak to his client. Both the first-instance judge and the Court of Appeal rejected his request, dismissing the EU Directive on the Right to Translation and Interpretation. The case is currently pending before the Supreme Court.

Bad interpretation by phone hinders fair interrogations in the Netherlands

Gwen Jansen.jpgMaking translation and interpretation available to defendants is generally considered to work well in the Netherlands. However, issues remain as to the quality of these services, and this can greatly impact upon the ability of the defendant to present their defence and to challenge the accusations. This was very much the experience of LEAP member Gwen Jansen, a practising criminal lawyer in the Netherlands.

In a case in which an interpreter was required for an Irish person in Amsterdam, for whom interpretation was necessary to understand the questions and to answer appropriately, no Irish interpreter was available. Instead, an English interpreter was provided. The two languages being identical in writing, it was thought that interpretation would not represent a huge challenge. But this was without taking into account that interpretation would happen on the phone, as is usually the case in the Netherlands.

It was only because Gwen herself understands English, that the defence noticed that the interpreter was not translating the words of the defendant correctly; in fact, some information provided was misleading with consequences for the supposed facts of the case. The police officer was reported to know English himself but did not intervene to stop the incorrect interpretation.

In this case, Gwen sought another interpreter, who was eventually provided, but it’s unclear how the interrogation might have developed, were she not there or had she not known the language of the defendant.

LEAP member and Fair Trials joined efforts in fighting abusive INTERPOL Red Notice against Iranian activist

Nicola.jpgLEAP lawyers have regularly worked for clients who have fallen victim to abusive INTERPOL Red Notices. In 2016, we helped LEAP member, Italian defence lawyer, Nicola Canestrini in the case of Iranian activist and political refugee Saied (not his real name). Saied was arrested in Italy as a result of a Red Notice issued by Iran. On 6th August, 2016 Saied checked into a hotel in Italy, where he was about to spend his holiday. Shortly after, two teams of police agents burst into the hotel and arrested him, apparently acting as a result of the Red Notice. His Red Notice was based on claims that Saied had bribed a company, apparently related to the Iranian government. After the arrest, he was brought to jail where he awaited extradition. He spent five days in custody, fearing extradition to Iran, even though he had been granted asylum in the UK several years earlier.

Nicola contacted us for help get Saied removed from INTERPOL’s “wanted person” lists. Relying on INTERPOL’s new policy regarding individuals with refugee status, an application was made to INTERPOL to removal all information on Saied entered in relation to a criminal case which was an apparent pretext to prosecute Saied because of his political views. Two months after the request was sent, the good news arrived: the General Secretariat of INTERPOL certified that the defendant was no longer subjected to the Red Notice and all information regarding his person had been cleared from INTERPOL’s database.

Outrage in Bulgaria over secretive transfer of Turkish citizen to Ankara

In Bulgaria, several extradition requests to Turkey have been carried out secretly against the decisions of domestic courts. The following case was shared by our LEAP member and criminal defence lawyer in Bulgaria Asya Mandzhukova. Abdullah Büyük fled to Bulgaria in February 2016 where he applied for political asylum. A few weeks after his arrival, Turkey issued an INTERPOL alert against him on charges of terrorism and money laundering. The Bulgarian Sofia City Court and the Bulgarian Court of Appeal in Sofia both refused to extradite Mr. Büyük finding that Turkey had failed to present any evidence relating to the charges against him; that the charges were likely to be politically motivated; and that Mr. Büyük was unlikely to be given a fair trial in Turkey. Despite the courts’ findings in the extradition proceedings, on 27th July, through a separate administrative procedure, the Bulgarian vice-President Margarita Popova denied Mr. Büyük’s asylum request. The grounds for the refusal were not disclosed and Ms. Popova has since dismissed questions from the public and the media. Just a few days later, Mr. Büyük was secretly taken to the border and handed over to the Turkish authorities by the Bulgarian Ministry of Interior. The operation was revealed only because the transfer received extensive media coverage in Turkey. Read more from our LEAP member Asya Mandzhukova here.

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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