By Bruno Waterfield - 28th April 2004
An EU right allowing crime suspects to inform friends and relations of their detention may fall foul of tough UK and Spanish anti-terror laws.
The European Commission has published a watered down charter of rights for all suspects detained within the EU.
But the delayed ‘common minimum standards’, already much “less ambitious” than original Brussels plans, may be sunk by Madrid and London.
Anti-terror measures in Britain and Spain allow suspects to be detained incommunicado – a situation unlikely to change after March 11 bomb attacks on Madrid and against the background of Europe’s security fears.
Righting a letter
EU justice chief Antonio Vitorino is calling for a ‘letter of rights’ to be given to all suspects at the point of detention.
Included would be a new right, not required under any existing international treaties, to communicate arrest.
“A detained person should be entitled to have family members, persons assimilated to family members and his or her employer informed of the detention,” said a commission statement.
Other rights for EU crime suspects are deliberately less contentious after rows over a legal basis and pressure from some national capitals dogged proposals initially planned for last October.
Five rights
So minimal are the ‘rights’ that commission justice officials were concerned that the move could actually push protections for suspects downwards.
“We might have found a situation where common European rights represented a lowering of standards in some member states,” said a commission official.
To guard against euro dumbing down the document given to suspects will take the form of headings – five, one for each ‘right’.
- Access to legal advice
- Access to interpretation and translation
- Protecting persons who cannot understand or follow the proceedings
- Communication and consular assistance for foreign detainees
Under the heading each European country must explain national provisions meeting the entitlement.
Minimal not Miranda
But questions remain over the legal force of the ‘letter of rights’ and what would happen if a suspect was not informed of entitlements.
“The EU does not have competence on sanctions and that will be for each member state to decide in accordance with their own criminal procedure,” said the EU official.
EU justice officials ward off comparisons with America's 'Miranda rights'.
The famous guarantee read to all US suspects grants rights of silence enforceable in the American courts.
Despite avoiding politically charged issues such as the right to silence and limitations on pre-trial detention, EU officials see the ‘letter of rights’ as the first step in a softly, softly approach.
“There will be more to come,” said the justice official.
The commission’s proposal - COM/2004/328 - must be agreed by all Europe’s justice ministers and legislation enacted at the national level before the ‘rights’ have any legal effect.
Balancing
EU measures to set common criminal standards have so far only been agreed at the level of making prosecution easier.
Vitorino argues that balance needs to be maintained as the EU plans to add to a raft of anti-crime measures.
“This proposed directive is inspired by the need to guarantee for all European citizens common minimum rights in judicial procedures,” the justice commissioner said.
“Our legislative action [must] achieve the correct balance between the search for security and the guarantee of fundamental freedoms.”
Leader of the European Parliament's Liberal Democrats Graham Watson welcomed the new safeguards.
European Arrest Warrant
Watson was the architect of the EU's European Arrest Warrant (EAW).
"The pendulum has swung too far in the direction of repressive measures. This long-awaited proposal gives them the opportunity to redress the balance," he said.
The controversial arrest warrant, opposed by Watson's UK Lib Dem colleagues, was agreed in the aftermath of September 11 2001 to fast track EU extradition procedures.
Many critics were, and remain, concerned that the EAW gave too many powers to Europe's police and prosecutors.
Watson believes that Wednesday's 'letter of rights' will even out the balance.
"When I guided the European Arrest Warrant through parliament in 2002, I repeatedly insisted that the commission balance it with a proposal to protect defendants' rights," he said.
Have your say...
Please enter your comments below.