It may be that, 30 or so years ago, people were saying that EU law would never make much of a difference in the workplace.
Practitioners knew nothing about it, and it would never bite. Yet EU law is now part of the national furniture in this area. Ask Birmingham City Council: principles of effectiveness developed in Luxembourg were among those the UK courts relied on in 2012 to give the go-ahead to 174 equal pay claims brought by its former employees; 11,000 others followed, leading the council to sell off assets to settle them. The impact could hardly be greater.
The lesson is relevant for criminal lawyers. Since 2009, the EU has adopted three directives pursuant to a programme called the Roadmap for strengthening procedural rights: one protecting the right to interpretation and translation , another the right to information and access to case materials , and another on access to a lawyer (the Directives) (the UK has, disappointingly, failed to show leadership and declined to be involved in the last one). They represent an opportunity to enhance protection of fair trial rights. But there is a consensus: for these measures to have an impact, practitioners need training so they will actually use them in court.
National courts are the key forum because EU law relies on decentralised enforcement. Sure, member states implement Directives, and that can make a difference (Fair Trials has worked with local partners in Spain , Lithuania and the UK to contribute to legislative consultations, and noted some positive changes). And the Commission can, in theory, take member states to task for doing so incorrectly, though its resources are limited and such steps will be politically delicate. But for the individual who wants his defence rights protected, the key actor is really the judge deciding his case.
Currently, for the Legal Experts Advisory Panel , Fair Trials’ network of 130 criminal justice professionals, the outlook is cautiously optimistic. There are well-documented problems, which the Directives could help to solve: across the EU member states (in countries of post-Soviet, civil and common law traditions), for instance, long-entrenched ideas on access to evidence (disclosure) at the police station and prior to trial place the defence at a disadvantage, and practitioners see Directive 2012/13/EU on the right to information (the ‘Right to Information Directive’) as a potential solution. Yet, lawyers say that courts will be unwilling to look beyond the criminal procedure code, still less to engage with the Court of Justice of the EU (CJEU) to ask about the interpretation of the Directives when needed (more here ).
Judges, at least, will be trained by member states on the Directives, as will prosecutors and other officials. But the legal profession, which will have to raise the arguments, needs to train itself. For that reason, Fair Trials , a pan-EU criminal justice organisation based in London and Brussels, launched a new project in May 2014 to train 240 lawyers across the 28 member states working with five local partners, building on a training series last year. We also just launched an interactive video training series with courses on the Directives and the CJEU, with test questions and model answers - it is freely accessible here and we encourage you to give it a go.
National bars have a very important role to play, not just in training practitioners, but in the full panoply of implementation activities, including organising litigation in national courts. One notable example is that of the Paris Bar, which coordinated a litigation campaign invoking the Right to Information Directive long before its implementation deadline through a template written pleading circulated among members (more on this here ). The Asociación Libre de Abogados, a lawyers’ association in Spain, has been organising trainings and taken a complaint to the Constitutional Court seeking to challenge the laws restricting access to evidence at the point of arrest. Fair Trials has made cooperation with national bars and lawyers’ associations a key part of its implementation strategy and is keen to pursue joint initiatives of this kind.
Such activities should be a priority. Back in June 2014, the European Council adopted Strategic Guidelines with a clear call on the EU institutions to ‘enhance the training for practitioners’ (para. 11) to ensure the existing body of law works in practice, in the same breath declining to state any clear legislative ambitions despite the existence of outstanding challenges (like the overuse of pre-trial detention in the EU). The objective is thus not just to give the legislator a break, but seriously to focus on effective implementation on the ground. It is important to hold the EU to its intentions.
Alex Tinsley is a law reform officer at Fair Trials, a human rights organisation ased in London and Brussels. To find out more about Fair Trials International, visit their website.