Europe

The EU is now taking an increasing interest in criminal law with projects including compensation for the victims of crime and plans for an EU arrest warrant in the pipeline

The extent to which the EU is now functioning in a number of areas which fall under the general banner of “justice and home affairs” is fast growing and it can come as something of a surprise to practitioners who may be used to EU involvement in fields such as employment or competition law.  One area in which the EU is taking an increasing interest is that of criminal law, and a brief glance at the Justice and Home Affairs section of the European Commission website will show an outstanding consultation on the status of suspects and defendants in criminal proceedings – a similar consultation on compensation for the victims of crime has recently been completed and these are just some of a raft of proposals which the EU has brought forward dealing with the treatment of victims in the criminal justice system. Similarly, proposals have recently been brought forward in connection with immigration, legal aid, ADR, and family law.   Here are outlines of some of the EU projects currently in the pipeline.

Criminal law

Compensation for the Victims of Crime

The European Commission held a hearing in March which brought together interested parties to discuss the issue of an EU-wide system for compensating crime victims. The hearing followed the Commission’s Green Paper issued in September 2001. It was widely agreed that the scheme should provide a safety net for all EU residents who become victims of crime, as most victims are not insured and statistically few can find redress through court action. As Member States currently offer different levels of compensation, the scheme could reduce the extent to which the place of injury determines the amount of compensation awarded. Delegates also addressed the administrative problems of cross-border compensation claims. Two principal models are being considered. Under the first, Member States pay compensation to victims injured in their own territory. This would be relatively simple to administer and would encourage states to make their territories safer. The second model adds to this by allowing citizens to claim compensation from their home Member States for injuries sustained elsewhere in the EU. Delegates discussed how the scheme could be made accessible. It was suggested that standardised application forms should be made available in all police stations, printed in all the Community languages. Delegates also considered the issue of legal aid for claimants. The Commission is currently analysing the responses received with a view to bringing forward a proposal for a Directive. The proposal was also recently discussed in the European Parliament.

Increased protection for suspects and defendants in criminal proceedings

The Commission published its Consultation paper on Procedural safeguards for suspects and defendants in criminal proceedings on 28 January 2002. It is proposed that a framework be established throughout the EU, setting out minimum standards that should apply in the treatment of suspects and defendants in various stages of criminal proceedings. The objective is to promote the free movement of people travelling throughout the EU, so that they may expect a system that will give them adequate protection wherever they go. It is proposed that the most efficient way of proceeding would be to set out minimum standards to be met and allow reasonable time for the Member States to ensure that their existing procedures meet this criteria. The Commission intends to produce an initial Communication this month covering what standards should be applied and when. Consultation will then follow, resulting in a final proposal being produced next year.

Green Paper adopted on establishment of a European Public Prosecutor

At the end of last year, the Commission adopted a Green Paper (http://europa.eu.int/comm/anti_fraud/livre_vert) on the establishment of a European Public Prosecutor (EPP), an independent judicial authority, responsible for protecting the Community’s financial interests from fraud and corruption. The intention is that the EPP have jurisdiction to direct investigations throughout the whole of Europe and therefore have use of all national enforcement instruments (on the basis of mutual recognition) as well as those instruments established through the process of European judicial co-operation. The trial itself should then be heard and judged in the national courts of the Member States. The Commission is ingathering comments, and intends to present its conclusions based on reactions received, no later than the beginning of 2003.

Plans for EU arrest warrant

A Framework Decision for a Europe-wide arrest warrant was launched by the Commission last autumn. The warrant is intended to replace what are perceived as cumbersome extradition processes with a surrender procedure enabling a Member State to simply request another Member State to transfer a suspect to its territory. The Decision will extend to thirty two offences including terrorism, trafficking in human beings, rape and racism and should apply from 2004.

Council considers initiative on enforcement of foreign fines

The European Council of Ministers is considering the details of the scope and procedures for the mutual enforcement of fines across the European Union. The Framework Decision follows an initiative of the UK, France and Sweden. The proposal can be passed only by unanimous agreement and all sides agree that fines for criminal activities should be recognised. However, the extent to which civil penalties should be covered has proved controversial. Ministers must decide on whether administrative fines such as road traffic offences should be included. Some Member States would like the scheme to be administered centrally while others prefer a model based on co-operation between national authorities. The language regime is also in dispute. The Spanish Presidency hopes that Ministers will reach agreement at the Justice and Home Affairs Council in mid-June.

Civil Justice

Proposal for Community-wide legal aid scheme

As reported in the April Journal, the Commission has recently released a proposal for a Directive dealing with legal aid in cross border civil cases and establishing minimum common rules relating to legal aid within the EU.   The draft Directive was debated in the European Parliament in May when some of the issues discussed were the scope of the Directive to apply in matters which could be seen as domestic rather then cross border, and its application to non EU citizens.  The Parliament is expected to come to a final view on the Directive later this year. However, in order for the proposal to become law, it will require the unanimous endorsement of the Council of Ministers. To be covered by the Directive, the UK and Ireland have to choose to “opt in” under the protocol on civil law annexed to the treaties.  If adopted, the Directive must be transposed into national law by 1 January 2004.  

Alternative Dispute Resolution

In parallel with its proposal on legal aid, the Commission is conducting a consultation on the use of ADR, through a Green Paper on alternative dispute resolution in civil and commercial law.  The deadline for comments on the paper is 15 October 2002 and the Commission expects to organise a public hearing on the matter early in 2003.  As with the legal aid proposals, the stated aim of the project is increased access to justice through promotion of dispute settlement out-of-court.  The Commission sees many advantages in dispute resolution of this kind, particularly in the case of cross-border disputes and notes that this topic was very much on the agenda during recent debates concerning on electronic commerce.  The Commission also sees a role for ADR in consumer and employment disputes.

Family law – Brussels III
The principle of mutual recognition of judicial decision is the overall aim of ongoing work within the EU.  On 3 May, the Commission published a proposal on the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility.  The proposal is an amalgam of the so-called Brussels II Regulation (which came into force in May 2000), a Commission proposal on parental responsibility, and a French initiative on rights of access.  If successful, this proposal will repeal the Brussels II Regulation, as its provisions are included within the present draft, along with further provisions.  

Immigration

New rules on return of illegal immigrants
In April, the Commission issued its Green Paper on illegal immigration. It follows the European Council Meeting at Laeken in December and the Commission’s subsequent Communication “on a Common Policy on Illegal Immigration.” In the Green Paper, the Commission seeks ways to integrate a “return scheme” into the Community’s overall immigration and asylum policies. It hopes to achieve this in a way that is also compatible with international and European law, avoiding and preventing the repatriation of anyone who might then be subjected to inhumane treatment, torture or the death penalty. The Commission has emphasised the need to create common standards and common measures across the Community on, inter alia, repatriation, expulsion and voluntary return. It also seeks to improve co-operation between Member States’ services and asks whether a future financial instrument should be considered to implement this. The discussion extends to international readmission agreements. Currently, these are agreed bilaterally between individual Member States and non-EU countries but it is hoped that a discussion will follow on the mechanisms which will allow EU-wide agreements to be reached. The Commission will consider responses to the Green Paper until 31 July 2002.