Study finds alarming breaches in criminal defence in Europe
A major EU-funded study into existing criminal defence practices has uncovered significant rights violations in nine European jurisdictions. The three-year project 'Effective defence rights in the EU and access to justice: investigating and promoting best practice' was funded by the Criminal Justice Programme in 2007. Results of the analysis and subsequent conclusions have been collated in the publication, Effective Criminal Defence in Europe.
Millions of innocent and guilty people in Europe are arrested and detained by the police every year. For some of these people, the matter is resolved at a local police station, but for many others, this means considerable time in custody awaiting their trial.
The right to liberty (Article 5) and the right to a fair trial (Article 6) are the principal defence rights detailed in the European Convention on Human Rights (ECHR). In addition to the presumption of innocence, and the (conditional) right to release pending trial, an arrested person also has the right to defend themselves in person or through a lawyer of their choice, and the right for this to be paid for by the state if they do not have the economic means to do so.
Under the EU-funded project, the following four researchers set out to study and compare access to effective criminal defence in Europe: Professor Ed Cape of the University of the West of England (UK), Professor Taru Spronken of Maastricht University (Netherlands), Roger Smith of JUSTICE (UK), and Zaza Namoradze of Open Society Justice Initiative (Hungary).
They chose nine specific European jurisdictions (Belgium, England and Wales, Finland, France, Germany, Hungary, Italy, Poland and Turkey) because each represented one of the three major legal traditions in Europe: inquisitorial, adversarial and post-state socialist.
The researchers examined if standards set by the ECHR are being met, how these rights are implemented in a practical sense, and whether systems are in place that allow people to exercise these rights.
Their subsequent results showed that major gaps do in fact exit in access to criminal defence in Europe. Professor Cape explained that for suspects and defendants that do not understand the native language, interpretation and translation and other basic requirements are not being met in many countries. Furthermore, with the exception of England and Wales, and Finland, legal aid for people who cannot afford a lawyer is largely not available in seven of the nine countries involved in the study.
'In Italy, for example, even though it is compulsory for a suspect to have a lawyer when interviewed by the police, legal aid eligibility is so low that in 2006 only just over 6% of defendants received it,' said Professor Cape. 'And this in a country where more than half of the prison population is in pre-trial detention or awaiting sentence, and where the average length of a criminal case is over four years.'
Effective Criminal Defence in Europe was launched at the 'Effective Criminal Defence in Europe: Advancing Beyond Stockholm' conference in Brussels, Belgium, in June 2010. According to Professor Cape, many of the conference participants were genuinely shocked by the findings.
'The research produced a wealth of data regarding the countries in the study, and with ratification of the Lisbon Treaty and agreement on the Stockholm Programme putting criminal defence rights on the agenda again, it is likely to have a significant impact on the development of EU policy over the next few years.'
The book features six general recommendations, including the need for the EU to work with Member States and professional organisations to identify good practices, and the need to support the routine collection and publication of statistical evidence in order to make criminal procedures and practices transparent. The researchers also recommend that training for criminal justice professionals (e.g. the judiciary, prosecutors, police, lawyers, and interpreters and translators) be encouraged and supported to facilitate effective criminal defence.
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