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.
In March 2013, the Conférence of the Paris Bar – a yearly cohort of bright young lawyers – produced a template pleading, which was circulated among colleagues and used systematically across France. The submission reiterated the Bar’s long-held view regarding Article 6 ECHR, Salduz and Dayanan, discussed above. But the main line was that Article 7(1) of the Directive established the right to consult the file prior to interrogation, and that gardes-à-vue should be annulled for failure to allow this.
This relied in part on the Directive producing legal effects prior to its implementation deadline. The brief invoked the CJEU’s case-law (see 121-123) enjoining national courts to refrain, before a directive’s implementation deadline, from interpreting national law in a manner which might seriously compromise the subsequent achievement of its objectives. Some civil law judges, sitting as substitutes in the Paris criminal courts over Christmas 2013, accepted these arguments and invalidated gardes à vue on the basis of the Directive.
These decisions did not stand, but the strategic advantage of invoking the Directive early became clear. In a judgment of 24 March 2014, a chamber of the Paris Court of Appeal rejected the arguments based on Article 6 ECHR, and the idea that Article 7(1) of the Directive could be relied upon directly to invalidate a garde à vue prior to the implementation deadline. But crucially it added that, subject to proper implementation by France, this would become possible from 2 June 2014. As a result, the French implementing law was under the microscope before it was even promulgated.
The implementing law
On 15 May 2014, the Assemblée nationale published a pre-final law purporting to implement the Directive, to enter into force on 1 June 2014. While the draft was still being debated, a member of the Ecologist party had proposed an amendment, backed by the Paris Bar, providing for access to case materials necessary for the exercise of defence rights. The Government, though, preferred a conservative approach pending the report of the Beaume Commission, charged with proposing more fundamental reforms of the justice system. As a result, nothing much changes: the person or their lawyer now gets access to a slightly more detailed procès-verbal, with the legal classification (not just the ‘nature’) of the allegation and the reasons for the arrest. But the file itself remains under wraps.
What happens now depends on two questions. Most basically, does Article 7(1) of the Directive actually require access to elements of the police file, as the Paris Bar says it does, making this implementing law inadequate and leaving the suspect to rely on EU law itself? We believe so. And if it does – a key point relevant for all the Roadmap Directives – what is the remedy for its violation?
For the Paris Bar, a violation of the Directive entails nullité of the garde à vue and, with that, subsequent procedural steps grounded in investigations conducted during the garde à vue like hearing another witness or submitting the case for trial. But what of Latvia, where there is no concept of nullité and procedural violations are supposed to be remedied by the trial court disregarding, or attaching less weight to, the resulting evidence? How should a violation of a Roadmap Directive, as articulated in the police conduct (‘PACE’) code impact on an application to exclude evidence under section 78 of the Police and Criminal Evidence Act in England?
The Roadmap Directives are ‘minimum rules’, which respect the identity of these diverse systems, but together with the Charter of Fundamental Rights, they surely require effective remedies to vindicate their inobservance and may impose red lines somewhere. Remind yourself that if you take a police interview out of the equation, it may spell acquittal, and you see that you are dealing with the idea of EU law making a mark at the heart of criminal justice.
Luxembourg on standby
Ultimately, such questions will be for the Court of Justice of the EU (‘CJEU’). In cross-border criminal matters, the CJEU has not shown signs of human rights activism, but the Roadmap Directives give it a clear mandate on defence rights. Member States’ concerns about resources and operational constraints will have traction, but the appeal to the CJEU’s conscience could not be higher: its rulings could be the difference between prison and freedom (indeed, its ‘PPU’ urgent procedure caseload may spike). Interpretations of provisions like Article 7(1) of the Directive may also go where the ECtHR has not, and potentially set higher standards for the EU – the so far elusive situation envisaged by Article 52(3) of the Charter which would help protect the EU from censure in Strasbourg once it accedes to the ECHR. And the CJEU can give robust rulings on defence rights safe in the knowledge it is ensuring a better basis for judicial cooperation, which the Member States may themselves find appealing. So, all in all, it is a time for cautious optimism.
Jessica Finelle is a lawyer at the Paris Bar, specialising in criminal law.