EU is throwing habeas corpus out of the window

British citizens could be convicted in their absence by foreign courts for traffic, credit card or other criminal offences under plans approved in principle by the European Parliament.

The proposals would allow citizens to be extradited automatically under fast-track procedures at the request of another European Union country on the basis of a decision by the foreign court.

The overwhelming adoption by the Parliament of the proposals, which now go to the Council of Ministers, was condemned yesterday as “throwing habeas corpus out of the window”.

Philip Bradbourn, the Conservative justice and home affairs spokesman in the European Parliament, said: “This initiative would enable courts to pass judgments in absentia. It goes against one of the most fundamental corner-stones of British justice – that the accused has a right to defend himself at trial. If other EU countries want to go ahead with this proposal that’s their choice, but the British Government should have no part [of it].”

The proposal has been put forward by seven EU countries, including Britain, to strengthen procedural safeguards in the European Union and mutual recognition of processes in criminal proceedings. Countries can opt out from the proposals even if they are adopted by the Council of Ministers.

The European Criminal Bar Association opposed the plans, saying that they were “by their very nature a violation of the fundamental procedural rights of the accused”.

In an open letter to all MEPs it says: “The rights of European citizens will be further undermined because in absentia judgments will result in the surrender of European citizens on the basis of a judgment given at a trial in which they never had the chance to participate.

“One member state could issue a European arrest warrant on the basis of an in absentia judgment, although the accused never had the chance to be heard – for example, after a traffic accident or the use of a credit card in that country.”

The seven countries that proposed the new system were Slovenia, France, the Czech Republic, Sweden, Slovakia, Germany and Britain, according to the Conservatives in Brussels.

The scheme would allow courts to make judgments without defendants being present where they were imposing fines or confiscation orders; when dealing with criminal offences carrying a custodial sentence; and when issuing the European arrest warrant. It could cover offences such as traffic trangressions, theft, shoplifting or fraud, up to assault or murder. People who have been accused in their absence have the right to a retrial or the right of appeal when extradited.

Countries will not be able to enforce judgments where a person was not properly summoned or informed of the trial procedures, but the campaigning group Fair Trials International says that this appeal safeguard is in adequate. It says: “Retrials can raise serious issues such as the disappearance of evidence, difficulty in locating witnesses, and difficulty in witnesses accurately recalling facts due to elapse of time.”

The group adds that it “remains deeply concerned that the right to a retrial following judgments in absentia can be meaningless or ineffectual while the EU lacks harmonisation of basic procedural rights. The system of mutual recognition can only work if it is built on a solid foundation of mutual trust – and this must include assurances that minimum standards of basic defence rights will be applied in every case in every member state.”

A spokesman for Conservative MEPs said: “Once extradited, [defendants] would have to serve the sentence in that country. The individual can appeal in the country they have been extradited to but would be held in custody and not have the safeguards which are in place in the UK. We have no idea why the UK Government has chosen to sponsor this proposal – it is still a mystery.”

The Council of Ministers put forward the document for consultation with the European Parliament. The amended document was presented yesterday to the full Parliament and was adopted with 609 votes in favour and 60 against, with 14 abstentions.

The Parliament said in a statement: “The EU wants to create a common area for justice, which requires the mutual recognition of criminal law judgments by member states.”

The document will be presented to the Council of Ministers within the next three months for a decision on which points will be incorporated. Once a unanimous agreement is reached, the document will start the process of becoming national law.
September 3, 2008
Frances Gibb, Legal Editor

Source: The Times

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