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Defence rights Across the European Union, basic rights are violated every day in police stations, court rooms and prisons. Legal advice is not always provided; standards of interpreting are often poor; and people are imprisoned unnecessarily before trial. This destroys the lives of innocent people, causes miscarriages of justice and undermines public faith in criminal justice. Fair Trials International has, for many years, called for EU action to tackle these human rights abuses and real progress is finally being made. In the last two years, new EU laws have been passed guaranteeing the right to interpretation and translation and information for suspects. But these are only the start. Much more work is needed to raise standards of justice in Europe. Until this is completed, injustice will remain a daily reality.

Working for a world where every person’s right to a fair trial is respected, whatever their nationality, wherever they are accused


Fair Trials International

Imagine being arrested in a country where your basic rights are not respected. What would you do if you were mistreated, or refused information about your case or your rights? What if you could not understand the police and there was no interpreter, or you could not afford a lawyer and there was no legal aid? This is the ordeal suffered by many of the hundreds of people who contact Fair Trials International for help every year. It is a daily reality, even within the European Union. EU defence rights - bringing rights home A fair trial is the best way to separate the guilty from the innocent. Clear, enforceable defence rights help to minimise the risk of innocent people being wrongly convicted. They ensure the powers of states to investigate, arrest and detain people are not abused.

Mohammed Abadi Mohammed (not his real name), an Iraqi refugee, was arrested in Spain for alleged terrorist activities. After his arrest, he was taken to a “medical facility�, stripped and humiliated. He was interrogated without a lawyer and threatened with a gun. Mohammed was detained in appalling conditions and denied access to a lawyer or consular assistance. At his trial, five years later, he was acquitted of all charges. For much of this time he was detained incommunicado and without any information on the case against him.

The rights to liberty and a fair trial are defining features of a just society but, sadly, sixty years after the European Convention on Human Rights was agreed, EU countries are responsible for a growing number of violations. Liberty and fair trial rights are the ones most commonly breached.

250%

- the increase in violations of the right to liberty in criminal cases by EU countries since 2007

Over 13% of our clients reported being denied access to a lawyer during their police interview in the EU.

EU justice timeline 2004: EU countries moved to a fast-track extradition system – the European Arrest Warrant on the naive assumption that fair trials are guaranteed across Europe.

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Fair Trials International wants to see respect for fundamental rights at the heart of EU justice policy. EU laws should make clearly defined fair trial standards directly enforceable in courts across Europe. People should not have to go to the human rights court in Strasbourg to uphold their rights. They should not lose their rights when they move from one EU country to another.

In 2009, the EU finally agreed the “Procedural Rights Roadmap”, which promised a series of new laws, each protecting a key element of the right to a fair trial. Since then, there has been some progress, but there is still a long way to go.

Prison Overcrowding: the EU’s worst offenders 2011/2012

Cyprus

Natalia Gorczowska Natalia Gorczowska was threatened with separation from her one year old baby, just one of many people facing disproportionate extradition and imprisonment for minor offences committed years earlier.

2004 – 2008: Extradition numbers surged. Overcrowding in many prisons across the EU worsened. EU countries failed to agree a package of basic laws to protect defence rights.

2009: The EU at last agreed to take action on defence rights and adopted the Procedural Rights Roadmap that promised laws to protect the basic rights of anyone facing charges in EU.

2012: Some progress has been made but much more remains to be done to achieve justice in Europe.

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Fair Trials International

Europe – a long way from being an area of justice, freedom and security

United Kingdom The UK’s extradition system has been heavily criticised. Relatively few violations in the European Court of Human Rights, but one third of these relate to right to a fair trial. Pre-trial detention periods are short (up to 6 months) but conditions have been criticised.

Bulgaria In the last five years Bulgaria has been held in violation of the right to liberty or a fair trial in over 80 cases, mostly because of the excessive length of criminal proceedings. The Council of Europe and the US State Department have reported judicial corruption and lack of independence.

Malta James Milton (not his real name) was just 16 when he was arrested in Malta. James was questioned for several hours overnight without a lawyer present. His mother was refused entry to the interview room despite her frequent requests to see her son. During his interrogation, James was not even given a glass of water. His passport was taken from him and for more than a year he was unable to visit family and friends in the UK. He was eventually cleared of any wrongdoing at trial.

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Netherlands Concerns about restrictions on accessing a lawyer in police custody. Defence lawyer quote: “You cannot discuss the case with the suspect in private. The police remain in the room so that you cannot speak freely.”

With the support of the law firm, Clifford Chance, we have reviewed European Court of Human Rights findings against every EU country on fair trial rights in criminal cases and pretrial detention between April 2007 and June 2012.

The Dutch NGO, EuroMoS, has surveyed hundreds of defence practitioners’ from across Europe on how well defence rights are being respected in practice.


Fair Trials International

Sweden Sweden has a good record of upholding the rights to liberty and a fair trial in criminal proceedings. Concerns have been raised about the restrictive conditions in pre-trial detention. Defence lawyer comment: “Sweden has no legal limit for pre-trial detention. This is a heavy burden, especially if the subject is held in isolation, which is very common.”

Greece More European Court of Human Rights violations of fair trial rights than any other EU country, nearly all relating to trial delays. Excessive pre-trial detention, often in horrendous conditions.

Andrew Symeou was just 20 when he was shipped off to a yearlong nightmare, in one of Europe’s worst jails

Italy

This is just a snapshot. A full, interactive map is available at www.fairtrials.net/justice-inEurope, containing information on defence rights in all of the EU’s 27 member countries.

Major delays in bringing defendants to trial with lengthy periods of pre-trial detention common. “The Government should, as a matter of priority, put in place legislative and other measures to decrease the duration of criminal trials with a view to ensuring better protection of the right to be tried without delay” – UN Working Group on Arbitrary Detention

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Fair Trials International

We won’t have justice in Europe until everyone is guaranteed: Defence rights

Action so far

Still to come?

Interpretation and translation for those who need it.

October 2010: new EU law adopted.

July 2013: deadline for EU countries to put into law.

Clear, prompt information on rights, charges and the case against you.

April 2012: new EU law adopted.

June 2014: deadline for EU countries to put into law.

Legal advice from the point of arrest or questioning by police, right through to trial and any appeal.

June 2011: draft law released but UK, Ireland, France, Netherlands and Belgium have criticised it as going too far.

In negotiation. European Parliament and Commission demand strong protections.

Right to communicate on arrest and access to consular officials.

June 2011: draft law released.

In negotiation.

Legal aid if people cannot afford to pay a lawyer.

Lawyers across the EU say legal aid systems are weak and standards low.

Draft law expected 2013.

Vulnerable suspects, like children.

Fair Trials International will be working with experts towards an effective new law.

Draft law expected 2013.

An end to excessive, unjustified pre-trial detention. we need: EU laws regulating the use of pre-trial detention; Better use of alternatives to detention; and Deferred extradition until the case is ready for trial.

June 2011: Commission consultation launched recognising the need for action.

A response from the Commission is awaited.

December 2011: Fair Trials International leads calls for effective EU action. Now backed by the European parliament, civil society and a number of member states.

The pre-trial detention regime in EU member states needs urgent reform, to ensure an end to the unnecessary and often arbitrary recourse to pre-trial detention and the severe rights violations that it causes

With generous support from:

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– A joint letter from Fair Trials International and other leading NGOs on pre-trial detention.


Fair Trials International

An unjust extradition system – undermining effective police cooperation Without effective guarantees of justice in Europe, efforts by states to cooperate to fight crime will be undermined. Thousands of people are removed from their homes and families every year, extradited under the European Arrest Warrant system, which is not working as it should. To create a fairer system we need: A proportionality test to stop extradition for minor offences; Warrants to be withdrawn where extradition is properly refused; Deferred extradition until case is ready for trial; and Courts to refuse extradition if human rights would be breached as a result.

Defence rights organisations like Fair Trials International have pinpointed failings in the arrest warrant. Problems with it being used for minor offences, the lack of legal representation, long pre-trial detention periods, and bad detention conditions are all cited. – Baroness Sarah Ludford MEP

In June 2011, following a major report from Fair Trials International featuring our clients’ cases, MEPs debated the case for reform, supporting action for a fairer system. Reform of this system is needed if we are to make justice in Europe a reality.

European Arrest Warrant numbers across the EU Fair Trials International’s proposals in relation to pre-trial detention are good and will work to reduce discrimination against non-nationals. – Judith Sargentini MEP

Chart only includes data for states which responded to the European Council questionnaire on the EAW. In each year 3 Member States on average did not respond.

This publication has been produced with the financial support of the Criminal Justice Programme of the European Commission. The contents of this publication are the sole responsibility of Fair Trials International and can in no way be taken to reflect the views of the European Commission.

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Fair Trials International

Our achievements Exposing the injustice caused by excessive and unjustified pre-trial detention and building consensus for reform.

Our future plans Fair Trials International will:

Winning support for improvement of the European Arrest Warrant.

Continue to campaign for EU action on procedural rights, including a strong directive on the right to legal advice and special protections for vulnerable suspects;

Maintaining pressure for the EU’s first two defence rights laws on interpretation and translation, and on information.

Work with lawyers across Europe so that EU defence rights laws are being properly used and applied;

“The work of Fair Trials International has been very instructive in showing that mutual recognition and mutual trust need to work together.” – Viviane Reding, Vice President of the European Commission, speaking at the European Parliament, May 2011

Support Us At Fair Trials International, we rely on the generosity of our supporters to continue our work. With your support we will continue to fight individual cases of injustice and to campaign for fair trials across the globe. To find out more and how to get involved, visit www.fairtrials.net

Fair Trials International, 3/7 Temple Chambers, Temple Avenue, London, EC4Y 0HP, UK Tel: +44(0)20 7822 2370  Fax: +44(0)20 7822 2371 Fair Trials International is a Registered Charity No. 1134586 and is registered with limited liability (No. 7135273)

Challenge excessive and unjustified pre-trial detention, promoting alternatives like the new European Supervision Order allowing people arrested in another EU country to return home until trial; Maintain pressure for reform of the European Arrest Warrant; and Promote new ways to raise fair trials standards, such as introducing tape-recording at police stations and tackling unnecessary trial delays.

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FTI defence rights leaflet