Jessica Finelle and Alex Tinsley
Yesterday, 2 June 2014, was the deadline for implementation of Directive 2012/13/EU on the right to information in criminal proceedings (‘the Directive’). This is the second of three directives adopted further to the 2009 Roadmap for strengthening procedural rights, the EU’s ambitious project to strengthen mutual trust between Member States’ judicial authorities by protecting criminal defence rights through EU law. The others were the Interpretation and Translation Directive, and the Access to a Lawyer Directive (together, the ‘Roadmap Directives’).
Designed to build upon the European Convention on Human Rights (‘ECHR’), these measures come full of promise: the citizen gets new, directly effective rights and the criminal court becomes a frontline enforcer EU law, potentially at the expense of inadequate national laws; the criminal judge can get help from Luxembourg, while the case is still live, lessening recourse to Strasbourg with the delayed justice this entails. That is the theory. To explore the potential impact on the ground, this post looks at the ongoing discussion surrounding access to the case file during garde à vue (police custody) in France.
Accès au dossier: the back story
Wind back to 2010. The European Court of Human Rights (‘ECtHR’) had given its important judgment in Salduz v. Turkey – establishing the right of access to a lawyer at the police station as an essential guarantee of Article 6 ECHR – and the Member States were scrambling to comply. The UK Supreme Court’s Cadder judgment found the Scottish system of police custody contrary to Salduz principles. In France, the Conseil Constitutionnel’s landmark ruling of 30 July 2010 found the garde à vue regime – whereby lawyers could not attend interrogations, despite the potential for suspects’ statements to be used against them later – unconstitutional. Urgent reforms followed in both jurisdictions.
For French lawyers, this was a watershed but only a first step. From their perspective, although they can now attend police interrogations, their presence remains somewhat ornamental. The relevant provision of the criminal procedure code (as in force until 1 June) entitled them to access the procès-verbal, the written record of the suspect being informed that they are in custody, the nature and time of the alleged offence, and their rights. But the underlying materials (e.g. the complaint, phone transcripts, testimonies, etc.) are unavailable. Without these, lawyers feel unable to advise clients usefully. Lawyers in Spain, who face the same problem, share their opinion.
The ECHR has not proved helpful in challenging this. The ECtHR had stated in its Dayanan judgment, shortly after Salduz, that the lawyer’s role at the police station involved a whole gamut of advisory and practical activities, and the brief Sapan judgment seemed to suggest explicitly that a lawyer needed to see the file to advise effectively. One brave court of appeal in Agen even followed this line in 2011, but the Cour de cassation was having none of it. And in a decision of 18 November 2011, the Conseil Constitutionnel confirmed that the new garde à vue regime was fine: police station proceedings were not part of the judicial process and did not call for equality of arms.
Nor does the arrested person derive much assistance from Article 5 ECHR. True, Article 5(4) entitles them to effective judicial review of detention; this challenge, as the ECtHR has often stated (para 124), should ensure ‘equality of arms’ and that means key documents need disclosing. But this applies only once the person is produced in court; in the shady confines of the police station – where confessions are so easily made and the outcome of a criminal case is often determined – it has no relevance.
Article 7(1) of the Directive
Enter Article 7(1) of the Directive. The idea is familiar: it requires Member States to provide a person deprived of liberty with access to documents essential for contesting the lawfulness of detention. But crucially, it speaks of a person ‘arrested or detained at any stage in criminal proceedings’. For the Paris Bar, it is obvious that this means an arrested person (or their lawyer) needs access to the police file before interrogation, so that they can contest the allegations – the grounds for their arrest – and advise the client on the best course of action.
Mobilising the defence
As with all Roadmap provisions, whether this one has an impact depends on the use made of it in practice. The Council of the EU, worn out from negotiating the measures, has emphasised the need for training to make them bite (para 12). Fair Trials International recently launched a project with five EU partners to train 240 defence lawyers across the EU with this in mind. National bars and defence associations, like the Asociación Libre de Abogados in Spain, are also organising themselves around these directives. Among them, the Paris Bar is in the maillot jaune. Continue reading