A report published this week made some radical and welcome recommendations for reform of extradition law across the EU. Whilst the title of the report (“Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters ”) and its length (388 pages) might be enough to deter the casual reader, the recommendations of the report are summarised in a few pages towards the back.
Recommendations suggested include introducing a judicial review mechanism in the issuing state, establishing dual representation for requested persons (ie, representation in both the executing and issuing state), and allowing the executing state to refuse to execute an EAW where it is “manifestly disproportionate”.
The report was the result of a Dutch/German/French project which looked at the very real problem of mutual trust. Mutual trust is the concept that the EAW system was founded on. It requires member states to respect the decisions of courts in other countries, and, whilst recognising that there will be legal and cultural differences, obliges the executing state not to go behind the expectation that the requesting state will comply with its human rights obligations (other than in very limited circumstances).
The problem is that justice systems across the member states do vary quite dramatically. If you had a family member facing criminal charges in another country, would you rather he or she was tried in Denmark or Bulgaria? There are dramatic differences between member states’ implementation of the right to a fair trial. Yet the principle of mutual trust requires that these differences are elided. Judges are loath to impugn the justice system of a fellow EU country and will order a person’s return, citing the principle of mutual trust and recognition.
For many defence lawyers, mutual trust often manifests itself as wilful blindness. We know that we cannot trust the justice systems in some countries. We know that the European Court of Human Rights has found frequent violations of the Convention (70 last year) by Romania. We know that Spain keeps people in pre-trial detention far longer than necessary, that prison conditions in Greece are abominable, that you will not get access to a lawyer at the police station in Ireland.
Should we really place blind trust in another jurisdiction’s justice system? This report shows an alternative path: that we develop a way of measuring justice systems in order that we can be certain that our trust is not misplaced. If that means that we do start to look critically at the justice systems of other European countries in order to raise their (and indeed our own) standards, that will also mean removing the scales from our eyes.